The law that will work is merely the summing up in legislative form of the moral judgment that the community has already reached.
Woodrow Wilson
State Legislative, Judicial, and Constitutional Developments Revisited
Many of the states which did not attempt to restrict the role of juries before Sparf et al. v. United States1 did so during the early twentieth century. Those states with statutory or constitutional provisions protecting the role of the jury reinterpreted those provisions in order to dilute the information given jurors. In states with a common law history of instructing jurors about their right to return an independent verdict, judges modified their instructions in order to attempt to bind the jury to the instructions of the court. Some states in which courts had not spoken definitively or consistently about jury independence came into line with the prevailing viewpoint as expressed in Sparf.
The Pennsylvania Supreme Court clarified its opposition to jury independence in the 1923 case of Commonwealth v. Bryson, by affirming a trial court instruction that the jury was “to take the law from the court as the proper source of information.”2 This case furthered the more limited holding in Commonwealth v. McManus3 that had been set in 1891, which left jurors free to “look to the court for the best evidence of the law, just as they were to look to the witnesses for the best evidence of the fact.”4 In McManus, the court was to be the best evidence of the law; in Bryson, the court arrogated to itself the power to be the sole source of evidence on the law. In spite of this, Bryson only declared the judge’s authority to tell the jury what the law is; it did not require the jury to deliver a conviction against their conscience.
The Supreme Court of Illinois ruled in 1931 that an 1827 statute5 making jurors the judges of both law and fact was unconstitutional, because it denied the right of trial by jury as ‘heretofore’ enjoyed as guaranteed in Article 2 § 5 of the Illinois Constitution of 1870. In People v. Bruner,6 the court held that a statute “which makes juries in all criminal cases judges of the law as well as the facts, therefore abrogates an essential attribute of the trial of a criminal case by a jury as known to the common law . . .”7 It is not clear that the Illinois Supreme Court independently investigated the common law power of jurors to judge the law. Almost every case or text cited directly echoed Justice Harlan’s opinion in Sparf et al.
The Illinois Court proceeded to find jury law-finding unconstitutional because “[s]ection 1 of article 6 of the Constitution vests the judicial powers in a Supreme Court and certain subordinate courts. The grant of judicial power to the department created for the purpose of exercising it is an exclusive grant, and exhausts the whole and entire power.”8 This reasoning assumes that the office of a juror is not a judicial one. This is erroneous. To judge the facts of a case is to exercise a judicial power. If jurors cannot be empowered to judge the law because only the bench has the authority to exercise judicial powers, then jurors cannot have the judicial power to judge facts, either. Either the office of a juror is not a judicial office, or the judicial power granted to the courts is not exclusive.9
Justice Duncan, writing in dissent, stressed that juries had been considered the judges of law and fact in Illinois since at least 1827,10 and that no previous decision had doubted the wisdom or constitutionality of that practice.11 Duncan pointed out that the constitutional provisions Justice De Young held were violated were all enacted long after jury law-finding had become explicitly accepted in Illinois:
The statutory provision that the jury in a criminal case should be the judges of the law and the fact had been in force and recognized as valid in this state for over forty-two years at the time the Constitution of 1870 was drafted and adopted. The members of the Constitutional Convention knew of that law, and it cannot, it seems to me, be said with any reason that they intended that the adoption of section 5 of article 2 should operate to destroy that statute, as substantially held by this court in its decision of this case.12
The meaning of Art. 2 § 5 of the Illinois Constitution had to be determined with reference to the law as it stood in Illinois in 1870, when that provision was drafted.13 The right of trial by jury as ‘heretofore enjoyed’ could only have meant the right to trial by jury as it had been practiced in Illinois before that particular constitutional provision was adopted. Justice Duncan pointed out that juries in Illinois before the decision in Bruner had the duty to judge both law and fact.
In neighboring Indiana, the right of jurors to judge both law and facts had been explicitly provided for in the state Constitution since 1850.14 This guarantee was interpreted into a nullity by the Indiana Supreme Court in Beavers v. State.15 This was an unusual case in that the Beavers court stated it was simply enforcing the right of jurors to judge the law, even while it approved trial court instructions that wrested the exercise of these rights from the jury:
The constitution of this state makes the jury the judge of the law as well as the facts. But this does not mean that the jurors may wilfully and arbitrarily disregard the law, nor that they make and judge the law as they think it should be in any particular case. It means that the jurors, under their oaths, should honestly, justly and impartially judge the law as it exists, and as it is found upon the statutes of our state, in each particular case. It does not mean that the jurors may so judge the law in any case as to make it null and void and of no force, but that they shall so judge the laws as to give them a fair and honest interpretation, to the end and to the effect that each and every law, in each and every case, may be fairly and honestly enforced. Any other interpretation of the law would weaken the safeguards erected by society for its protection; for by the non-enforcement of the law and its penalties in all criminal cases where it is shown by the evidence, beyond a reasonable doubt, to have been violated, contempt for the law is bred among the very class that it is intended to restrain. The facts must be so judged and found by the jury from a careful consideration of all the testimony given by the witnesses in the case, and under your oaths, you have no right to arbitrarily disregard either the law or the facts in the case, without just cause, after a fair and impartial consideration of both.16
The court found it necessary to reinterpret the constitutional provision granting jurors to the right to judge the law, because unlike a statute it could not simply be declared unconstitutional. After pejoratively (and erroneously) noting that “Indiana and Maryland are today the sole survivors of this archaic constitutional provision that a jury may determine the law in criminal cases,”17 the Indiana court announced its opinion that
Juries should be bound by their conscience and their oaths, and not be in substance told they may act capriciously upon a whim or prejudice. To follow their oaths and conscience is a good and wholesome admonition and certainly will not hinder, but rather aid them in their constitutional function of determining the law and the facts in a criminal case.18
In brief, although the Indiana Constitution explicitly guaranteed the right of jurors to judge law, the Indiana Supreme Court was willing to allow trial judges to instruct jurors that their duty was to follow the court’s instructions in determining that law. The court did not acknowledge that a juror’s conscience could conflict with a literal interpretation of her oath. The Beavers decision fails to provide any guidance to courts or jurors in cases where such conflicts occur. The only residual power left to the jury was to apply the law according to the judge’s instructions, to the facts as proven at trial. The history, purpose, and spirit of the constitutional provision was unequivocally ignored.
The Maryland Constitution acknowledges the right of jurors to be “Judges of Law, as well as of fact.”19 This right was interpreted not to extend to verdicts based on conscientious scruples concerning the law in the 1975 case of Thomas v. State.20 In Thomas, the defendant’s attorney “was denied permission to inform the jury in closing argument of the mandatory five-year sentence, with no possibility of suspension.”21 The attorney’s hope was that, in light of the harsh sentence, the jury would nullify the law. The court refused to “read into the jury function . . . any such broad prerogative.”22 The court held that the jury’s role was to “resolve conflicting interpretations of the law and to decide whether the law should be applied in dubious factual situations,” and not to “repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.”23
The role of juries was further limited in the 1981 case Montgomery v. State.24 There, the Maryland Supreme Court held that jury independence instructions should only be given to the jury in
Those instances . . . when the jury is the final arbiter of the law of the crime. Such instances arise when an instruction culminates in a dispute as to the proper interpretation of the law of the crime for which there is a sound basis . . . [C]ounsel may not in their arguments attempt to persuade the jury to enact new law or repeal or ignore existing law. However, in those circumstances where there is no dispute as to the law of the crime, the court’s instructions are binding on the jury and counsel as well.”25
This instruction allows the court to refuse to instruct the jury about its role as “judge of the law as well as of the facts” in cases where the defendant is anticipating that the jurors may have conscientious objections to the law as stated by the court. The court would only allow a jury independence instruction in cases where there was a good faith dispute over the proper interpretation of the law. Further, the defense would be forbidden from addressing the jury as to the law except in those cases where such a good faith dispute exists. This interpretation eviscerates the protections that the Maryland Constitutional Convention of 1851 carefully drafted into the Maryland Constitution, and denies that jurors have a role to serve as “the conscience of the community.”
In 1974, the Supreme Court of Iowa held in State v. Willis that “a district court jury is obliged not only to receive but to follow the court’s instructions on the law. The instructions are binding, not merely advisory.”26 The situation in Iowa, however, was unusual, if not unique, because in that state the role of juries was spelled out by statute.27 The defense did not attempt to argue that the statute defining the role of jurors was unconstitutional.
Kansas trial court judges decided, as late as 1971, to draft a model instruction explaining the right of jurors to judge the law (to be given only if the defendant concurred). The model instruction read that:
It is presumed that juries are the best judges of fact. Accordingly, you are the sole judges of the true facts in this case.
I think it requires no explanation, however, that judges are presumed to be the best judges of the law. Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.
The order in which the instructions are given is no indication of their relative importance. You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.
These principles are intended to help you in reaching a fair result in this case. You should give them due respect. Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have seen proven. You should do just that if, by doing so, you can do justice in this case.
Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances. Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.
Exercise your judgment without passion or prejudice, but with honesty and understanding. Give respectful regard to my statements of the law for what help they may be in arriving at a conscientious determination of justice in this case. That is your highest duty as a public body and as officers of this court.28
After two years and little usage, the Supreme Court of Kansas rejected this instruction, holding that
The instruction which we disapprove stresses the conscience of the jury as a basis for acquittal but fails to properly consider the effect of the instruction as to a conviction. The injustice which could result from adopting such an instruction when an accused is charged with a heinous crime is apparent. The administration of justice cannot be left to community standards or community conscience but must depend upon the protection afforded by the rule of law. The jury must be directed to apply the rules of law to the evidence even though it must do so in the face of public outcry and indignation. Disregard for the principles of established law creates an anarchy and destroys the very protection which the law affords an accused.29
The concern the court expresses over the risk of an unjust conviction as a result of a jury independence instruction is difficult to accept, so long as the defense has the right to refuse the instruction in every case. This makes it the defendant’s option—and thus the defendant’s strategic risk—whether to invoke jury independence or not. It is unlikely such instructions would be requested in cases involving heinous crimes. The Kansas court explicitly acknowledged that Kansas judges retained the power to grant new trials, or to set aside verdicts, where the evidence was insufficient to sustain a conviction or where the court suspected a conviction based on an erroneous interpretation of the law.30 Defendants who have been wrongly convicted retain, of course, the right to appeal. The court’s fear that resorting to “community standards or community conscience . . . creates an anarchy and destroys the very protection which the law affords an accused” are contradicted by the court’s own admission that jury independence instructions have been given in Georgia, Maryland, and Indiana without resultant anarchy or destruction.31
Professor Jon M. Van Dyke has written that the rejected Kansas jury instruction “does not authorize the jury to proceed lawlessly, but instead tries to impress upon the jury, in as careful a fashion as possible, the jury’s role as the ultimate decision-maker on the question of whether a general law can be equitably applied to the particular fact situation presented to the jury.”32 The instruction, which was apparently patterned after the instructions given in Georgia v. Brailsford,33 was designed to foster responsible jury decision-making, not anarchy or lawlessness. The Kansas Supreme Court, in rejecting the trial judge’s model instruction, was doing Kansas jurors a great disservice by denying them the guidance they needed to exercise wisely the powers they (concededly) retained. It stretches logic too far to claim that sua sponte jury nullification is a necessarily more valid exercise of juror discretion than jury nullification exercised as an informed and enlightened choice.
The Vietnam War Cases:A Preference for Sua Sponte Nullification
A preference for sua sponte nullification is precisely what the federal courts expressed in United States v. Moylan34 and United States v. Dougherty.35 The defendants in Moylan had been convicted of destroying government property, mutilation of government records, and interference with the administration of the Selective Service System for their role in the break-in and ransacking of a military draft office during the height of the Vietnam war. One of the points the defense raised on appeal was specifically “[t]hat the trial judge should have informed the jury that it had the power to acquit the defendants even if they were clearly guilty of the offenses, or at least, that the court should have permitted their counsel so to argue to the jury.”36 Judge Sobeloff, writing for a unanimous panel of the Fourth Circuit Court of Appeals, acknowledged that
If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide that decision.37
Judge Sobeloff conceded that this power of the jury is not always contrary to the interests of justice:
However, this is not to say that the jury should be encouraged in their “lawlessness,” and by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.38
The Moylan court ruled that juries may nullify, and that it is occasionally a good thing when they do so. Acknowledging that, the court ruled that jurors could not be informed of this power. The court recognized that jury independence is one of the strengths of the American legal system, but ruled that jurors must reinvent this particular wheel in every case where the prosecution is so egregious as to shock their collective conscience.
The Dougherty case was an appeal on behalf of seven members of the “D.C. Nine,” who ransacked offices of the Dow Chemical Company to protest the use of napalm in the Vietnam war. The decision in Dougherty closely mirrored that in Moylan. Judge Leventhal, writing for the majority, held in Dougherty that the jurors should be instructed in such a way that they must feel so strongly as to establish an independent conscientious mandate before they can be moved to nullify the law.39 He expressed concern that “This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy.”40 Even so, Judge Leventhal recognized that
The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of John Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law.41
The crux of Judge Leventhal’s argument was that informing jurors about their power to refuse to enforce an unjust law would encourage jurors to nullify the law. Where the jurors’ consciences were shocked by the law, they would nullify at their own initiative. An analogy offered by the Judge compared jury power to speed limits: although they are laid down as inviolable rules, drivers know that there is a 10–15 m.p.h. window of tolerance before the laws will be enforced. If speed limit signs merely stated that the recommended top speed was 55 m.p.h., there would be no limit to how fast some motorists might drive.42
This analogy falls apart on many points, as Chief Judge Bazelon pointed out in dissent. Motorists are aware of the tolerance applied to the enforcement of speed limits. Judge Leventhal’s optimistic claim about the knowledge of the American jury pool may be in doubt:
“The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. The jury gets its understanding as to the formal arrangements of the legal system from more than one voice. There is the formal communication from the judge. There is the informal communication from the total culture—literature (novel, drama, film, and television); current comment (newspapers, magazines and television); conversation and of course history and tradition. The totality of input generally conveys adequately enough the idea of prerogative of freedom in an occasional case to depart from what the judge says.”43
It is far from self-evident that this is at all true. Jurors may not be aware of their power to render a verdict according to conscience, or that they are immune from prosecution if they do so—particularly if they are under the impression that their oath binds them to enforcing the law as given in the court’s instructions. Further, in many cases, jurors are not aware of or in control of the penalties to be imposed on the defendant if he is convicted, which deprives them of the ability to render an informed conscientious verdict ameliorating what they may consider to be an excessive or unjust punishment.
Several recent studies call into question Judge Leventhal’s assumption that criminal trial juries are aware of their powers to nullify the law. For example, after conducting several surveys into this question, David C. Brody concluded that “[g]enerally, findings indicated that the public is unaware of its power and right.”44 Brody also points out that considering the “public’s lack of knowledge of science, civics, and geography . . . [a] policy impacting a proceeding as important as a criminal jury trial should not rest on such a speculative, hopeful assumption.”45 These studies raise the troubling possibility that some jurors may go into deliberations harboring uncorrected misconceptions concerning jury nullification which could affect proceedings in random, unpredictable ways.
Judge Bazelon thought that the trial court’s treatment of jury independence “not only . . . concealed [the doctrine] from the jury, but also effectively condemned [it] in their presence.”46 In his opinion, he openly displayed skepticism towards the majority view that “the spontaneous and unsolicited act of nullification [would be] less likely, on the whole, to reflect bias and a perverse sense of values than the act of nullification carried out by a jury carefully instructed on its power and responsibility.”47
It seems substantially more plausible to me to assume that the very opposite is true. The juror motivated by prejudice seems to me more likely to make spontaneous use of the power to nullify, and more likely to disregard the judge’s exposition of the normally controlling legal standards. The conscientious juror, who could make a careful effort to consider the blameworthiness of the defendant’s action in light of prevailing community values, is the one most likely to obey the judge’s admonition that the jury enforce strict principles of law.48
Informed jurors, in Judge Bazelon’s view, were more likely to be responsible jurors. He rejected the view that pre-existing knowledge, implicit information, or subliminal messages from court proceedings are sufficient to inform jurors of their role. Jurors should be informed of their right to acquit if in their view the law is unconscionable. Although Judge Leventhal considered this an onerous additional burden to place on the jury,49 Judge Bazelon considered jury independence a necessary release for the jury. Jurors should not have to choose between “following the law” and “doing what’s right.”
The reluctance of juries to hold defendants responsible for violations of the prohibition laws told us much about the morality of those laws and about the “criminality” of the conduct they proscribed. And the same can be said of the acquittals returned under the fugitive slave law as well as contemporary gaming and liquor laws. A doctrine that can provide us with such critical insights should not be driven underground.50
Even though Dougherty has been so often cited, it is interesting to note that the Dougherty court was probably poorly advised to go into the nullification issue at all. The case was reversed because the defendants had been improperly denied their rights of self-representation. Accordingly, the entire discussion of nullification in Dougherty is probably best considered as dicta, and not even legally binding upon the district courts in the D.C. Circuit. It is a long standing rule of appellate law that courts should not discuss constitutional issues that are not necessary for the decision. Thus, the Dougherty court carefully concentrated on the historical context and almost completely avoided reaching the constitutional implications of their nullification discussion. Dougherty is simply not as strong a precedent as it has been made out to be, yet it is one of the most cited cases on this subject.
The Moylan and Dougherty courts were giving voice to a preference for sua sponte nullification that had been developed through several United States Supreme Court cases following Sparf et al. In any number of cases, the federal courts had been unwilling to either endorse “jury lawlessness,” as it had become known, or to take any measures that would eliminate the power of juries to deliver a verdict according to conscience. It was haphazardly left up to the jury to discover and apply the doctrine of jury independence on its own initiative.
In order to prevent juries from delivering independent verdicts, a Massachusetts federal district court, trying the well-known child development author Dr. Benjamin Spock, along with co-defendants Rev. William Sloane Coffin, Jr., Michael Ferber, and Mitchell Goodman, chose to submit special interrogatories to the jury for its decision in addition to the regular general verdict of “guilty” or “not guilty” normally used in criminal cases.51 Special interrogatories, also referred to as special verdicts or special questions, are specific factual questions put to the jurors to be answered “yes” or “no.” Although they are routinely used in civil cases, they are almost unknown in criminal law. The defendants were charged with conspiracy to counsel, aid, and abet draft resistance during the height of the Vietnam war.
The First Circuit was apparently incensed at this innovation by the trial judge. The appellate court recognized that the trial judge was concerned that the jury would nullify, but asserted that the use of special interrogatories would destroy the purpose of the criminal trial jury:
Of more substantive importance is the fundamental difference between the jury’s function in civil and criminal cases. In civil trials, the judge, if the evidence is sufficiently one-sided, may direct the jury to find against the defendant even though the plaintiff entered the case bearing the burden of proof. In a criminal case a court may not order the jury to return a verdict of guilty, no matter how overwhelming the evidence of guilt. This principle is so well established that its basis is not normally a matter of discussion. Put simply, the right to be tried by a jury of one’s peers finally exacted from the king would be meaningless if the king’s judges could call the turn. In the exercise of its functions not only must the jury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent. Both have been said to result from the submission of special questions.52
The court was primarily concerned with the “subtle, and perhaps open, direct effect that answering special questions may have upon the jury’s ultimate verdict.”53 A series of questions, posed so as to lead inexorably to a pre-determined result, would completely deprive the defendant of the reasoned moral judgment of the community, by forcing the jury to follow the path of reasoning the judge felt appropriate. The court feared that “[b] y a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted. The result may be accomplished by the majority of the jury, but the course has been initiated by the judge, and directed by him through the frame of his questions.”54
Interestingly, the court was upset that special interrogatories would prevent the jury from considering the moral implications of their verdict. At some contrast to the Moylan and Dougherty courts, this court argued that:
Uppermost of these considerations is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic. Indeed, this is the principle upon which we began our discussion. If it were otherwise there would be no more reason why a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered.
Here, [where] some of the defendants could be found to have exceeded the bounds of free speech, the issue was peculiarly one to which a community standard or conscience was, in the jury’s discretion, to be applied. Whether we agree with defendant’s position or not, this was not a case to be subjected to special limitations not sanctioned by general practice.55
Not only did the Spock court specifically call on the independent powers of the jury to determine whether the law should be applied in this case, but they founded that decision on the constitutional protections of the Fifth and Sixth Amendments. They asserted that due process requires that a jury not be impeded from rendering an independent verdict as a matter of conscience, and the constitutional fault of special interrogatories was that they interfered with that due process protection provided by the jury. If due process forbade the use of special interrogatories in criminal cases, then it would appear that Spock created a per se rule against their use, at least in the First Circuit.
The Third Circuit in the 1982 case of United States v. Desmond,56 however, found special verdicts permissible where they do not harm the defendant, or where they are not objected to at trial.57 Although recognizing that as “a general proposition, special verdicts are generally disfavored in criminal cases,”58 and that “[u]nderlying this aversion is the feeling that denial of a general verdict might deprive the defendant of the right to a jury’s finding based more on external circumstances than the strict letter of the law,”59 the court, over one impassioned dissent, has not been willing to prohibit the use of special verdicts in criminal cases, at least in situations where the defense had not objected to their use at trial. Judge Aldisert, in dissent, would have banned special interrogatories altogether except at the motion of the defense showing good cause to justify their use, or where they are required by law:60
My view is that there has been sufficient experimentation by the district courts with this discredited practice, and we now have the solid experience. We are now in a position to enunciate a controlling principle severely restricting the use of special verdicts and special interrogatories in criminal cases. The majority opinion carefully sets forth the history and the reasons for our disenchantment, with a procedure that seeks to catechize a jury and thus infringe upon its power to deliberate freely as the conscience of the community.61
The most significant jury rights case decided by the Supreme Court following Sparf was probably Duncan v. Louisiana in 1968.62Duncan was the appeal of a black man who had been convicted of simple assault after having touched a white ‘victim’ on the elbow in an attempt to break up a racial altercation between two black males and three white males. Duncan was denied a trial by jury under Louisiana law, which only granted jury trials in felony cases. The Supreme Court remanded Duncan’s case for a new trial by jury, holding that “the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee.”63 Justice White, writing for the majority, explicitly recognized the role of the jury as a buffer between the government and the accused:
The guarantee of jury trial in the Federal and State Constitutions reflects a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.64
This dicta in Duncan is significant on several counts. Most importantly, the court recognized that the criminal trial jury’s role is to “prevent oppression by the government.” Obviously, the legislature is as much a part of the government as the executive or judicial branches. If the jury is to prevent oppression by the government, it must have as much ability to buffer defendants from the excesses of the legislature as from those of the judiciary. If the defendant was to have meaningful access to “the common-sense judgment of a jury” instead of “the more tutored but less sympathetic reaction of the single judge,” the jury could not be hamstrung by the bench. It must have the rightful authority to interpose its independent judgment as a protection to the accused.
White goes on to recognize that “when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed.”65 The purposes for which juries were created under common law dating back to before the Magna Carta include reviewing the law. Justice White is plainly referring to the ability of the jury to refuse to convict on conscientious grounds. No other interpretation presents itself. But, under Sparf, the jurors must either be aware of their power to judge the law before they enter the courtroom, or re-invent it from whole cloth during their deliberations. The judge is not obliged to inform them, and the defense attorney is usually not allowed to.
Duncan was followed by Taylor v. Louisiana,66 which was decided six years later. In Taylor, the court held that the Constitution required that a jury be selected from a representative cross section of the community. The court struck down Louisiana constitutional and statutory provisions which exempted all women from jury service unless they had filed a written request to serve as jurors. Although the court recognized reasonable administrative flexibility, allowing the states to grant hardship exemptions and to prescribe reasonable qualifications for jury duty, they held that “jury wheels, pools of names, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.”67
The court insisted on representative panels because the protective functions of the jury “are not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.”68 The defendant was entitled to the judgment of a cross-section of the community. The court went on to declare that
Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.69
As in Duncan, the Taylor court did not discuss the role jurors had in judging the law. It is plain, however, that the role the Court described cannot be fairly performed by a jury whose sole function is that of fact-finders. That “community participation in the administration of the criminal law,” which the court found to be “critical to public confidence,” is a shallow concept where that participation is not accompanied by the informed exercise of rightful discretion. The court seems willing to allow the jury to serve as the voice of the community, and is positing a mandate of constitutional dimensions that that voice be heard. However, they would not recommend, much less require, that jurors be informed of their discretionary powers. Hence, in Duncan and Taylor the Supreme Court implicitly enunciated the same irrational preference for sua sponte nullification that has become characteristic.
This preference is irrational because jurors who are aware of their power to nullify are more likely to exercise it responsibly and appropriately than those who are not. Two studies by psychologist Irwin Horowitz70 have shown that juries instructed that they are the judges of the law are more likely to convict defendants they considered dangerous (drunk drivers) and less likely to convict defendants whose behavior they considered understandable, excusable, or merciful (illegal weapons possession and euthanasia cases).71 Consistent with the opinion of Judge Bazelon, there was no difference in the results obtained in murder cases.72 These studies present evidence that a particular group of defendants—those who have done the least harm—are prejudiced by the refusal of the court to inform the jury of its powers. The jurors in Horowitz’ studies were apparently unaware, before entering the study, of the power they had; if they had been aware, they would not have been so influenced by the changes in the instructions. It is illogical to assume that jurors would be greatly affected by being told what they already know.73 Counting on jurors to come to court aware of their hidden powers runs counter to what little empirical evidence exists.
There is another reason for rejecting any preference for sua sponte nullification. Psychological studies indicate that a juror may be willing to convict and impose a cruel sentence if the legal system supports and applauds his actions, because judicial instructions have deprived him of any personal moral responsibility for his verdict. A study made by psychologist Stanley Milgram in 1963 tested the willingness of college students to inflict pain on test subjects in a simulated “learning experiment.”74 Subjects were told to administer electrical shocks of increasing severity to a test subject when ever they received a wrong answer to a word-matching test. The simulated shock generator was labeled from 15–450 volts in 30 steps, from “Slight Shock”, through “Intense Shock” and “Danger: Severe Shock” to the ominous “XXX” over the 435- and 450-volt levels.
The “victim,” a confederate of the test administrator, was strapped into a chair; he could not escape. In spite of the victim’s protests and refusal to answer questions above the 300-volt level, 65 percent of the test subjects administered shocks up to the maximum level. (No actual shocks were administered, but the subject was ignorant of this fact.) Subjects were willing to follow the director’s admonitions to continue, even though “[t]o disobey would bring no material loss to the subject; no punishment would ensue.”75 Test subjects routinely administered what they thought were dangerously severe shocks to defenseless victims on the basis of a wrong answer to a word game, on the authority of an experimenter operating on a college campus. Is it then outrageous to speculate that jurors, unaware of their power to legally do otherwise, might also impose outrageous punishments for minor or negligible infractions, based on the (presumably much stronger) authority of a robed judge in an austere courtroom? Milgram noted that his test subjects violated their own conscientious scruples in proceeding as far as they did, and that it was their willingness to obey authority that induced them to play the role of willing torturers of innocent victims:
It is clear from the remarks and outward behavior of many participants that in punishing the victim they are often acting against their own values. Subjects often expressed deep disapproval of shocking a man in the face of his objections, and others denounced it as stupid and senseless. Yet the majority complied with the experimental commands.76
Among the factors Milgram identified as contributing to the obedience of the test subjects was that the experiment took place “on the grounds of an institution of unimpeachable reputation,” that the experiment was “designed to attain a worthy purpose,” that “certain features of the procedure strengthen the subject’s sense of obligation to the experimenter,” and perhaps most importantly for jury independence purposes, that “there is a vagueness of expectation concerning what a psychologist may require of his subject, and when he is overstepping acceptable limits.77
There is a similar ambiguity over what a judge (or the law itself) can legitimately require a juror to do. Can a juror be asked to impose a draconian penalty on a well-meaning defendant because of a de minimis violation of the law? Can a juror be required to ignore the dictates of conscience and enforce the law, even when it seems “stupid and senseless” to do so? The juror does not have ready answers to these questions. He deserves, and should receive, candid instructions from the court. He should not be told, as Milgram’s subjects were when they balked: “You have no other choice, you must go on.”78
This judicial preference for sua sponte nullification did not prevail in every Vietnam War protest case. Occasionally, the arguments of the protesters and their lawyers prevailed, and jurors were given information on their rights to acquit against the evidence, when it would be unjust to enforce the law. The 1973 trial of the “Camden 28” was one such case.79 In that case, an F.B.I. informant had supplied the defendants with tools, supplies, and transportation needed to break into a Selective Service Office in order to steal and destroy draft records. The informant, Robert Hardy, made the following statement in his pretrial affidavit:
I provided 90% of the tools necessary for the action. They couldn’t afford them, so I paid and the F.B.I. reimbursed me. It included hammers, ropes, drills, bits, etc. They couldn’t use some of the tools without hurting themselves, so I taught them. My van was used on a daily basis (the F.B.I. paid the gas). I rented trucks for the dry runs and provided about $20 to $40 worth of groceries per week for the people living at Dr. Anderson’s. This, and all my expenses, were paid for by the F.B.I.80
Judge Clarkson S. Fisher initially told the jury that it was bound to follow the law according to his instructions, but later reversed himself, informing the jury that “if you find that the overreaching participation by Government agents or informers in the activities as you have heard them here was so fundamentally unfair as to be offensive to the basic standards of decency, and shocking to the universal sense of justice, then you may acquit any defendant to whom this defense applies.”81 Further, Judge Fisher went so far as to allow defense attorney David Kairys to explain the doctrine of jury nullification to the jury.82 The defendants were acquitted.
The Vietnam war protest cases inspired a wealth of articles on jury independence. Two of the most important were written by University of Michigan law professor Joseph L. Sax and Manhattan criminal defense attorney William M. Kunstler. Professor Sax published his article Conscience and Anarchy: The Prosecution of War Resisters83 in a general interest publication, The Yale Review, instead of in a law review or professional publication. In this forum, Sax managed to reach a wider audience of potential jurors and opinion makers, instead of focusing solely on legal professionals.
Sax argued that allowing juries to pass judgment on the law as well as the facts provides a sensible compromise between allowing every individual to be the sole judge of his or her own conduct, and requiring a conviction whenever a law has been broken. In terms reminiscent of John Henry Wigmore, Sax argued that jury independence “indicates the ability of a viable legal system to accommodate itself to those situations in which violation of the law should be viewed as justifiable.”84 This flexibility is especially important, says Sax, when political pressures make the normal constraints on the discretionary decisionmaking of the police, prosecutors, and judges unreliable. Such political pressures are at their greatest when the alleged crimes themselves are by-products of a political protest. They indicate that the system has broken down; independent juries can provide the correction.
[P]olitical prosecutions . . . are . . . generally directed to acts that are rather trivial (such as trespass); or are largely symbolic in their nature, and usually at the periphery of free speech; or urge passive resistance as a means to press for changes in the law . . . [I]t will sometimes be necessary to protest an unjust law by violating it and putting the question of justification to one’s fellow citizens.85
The defendant who breaks a law, with his only hope of acquittal being that the jury will approve of his behavior, is taking a huge risk. The jury might just as easily approve of the law, and condemn him with pleasure. Vietnam War protesters were willing to take the risk of leaving the verdict up to the “conscience of the community.” They were willing to hazard their freedom on their confidence that public opinion approved of their acts. The courts and the prosecutors were rarely so confident in the public’s support of their position.
William Kunstler’s viewpoint was similar to that expressed by Sax, but his writing was directed towards a more technical audience of legal professionals.86 Professor Sax did not give citations or references; Kunstler’s article is written in standard law review format, including full “blue-book” citations. But Kunstler also wrote with the voice of experience. He had served as defense counsel in several leading war protest cases and had unsuccessfully attempted to raise jury independence arguments in several of them.87 After reviewing the history behind jury independence, Kunstler asserts that
To support jury nullification is not to maintain that men are free to pick and choose with impunity what laws they will or will not obey. This is not and has never been the historical standard. However, when such choices are made, it is not too much to demand that juries must be let in on the closely guarded secret that they are, in the final analysis, the consciences of their communities and, as such, are free to acquit those, like John Peter Zenger, who, under ordinary circumstances, are indeed guilty of breaking the law in question. This is a far cry from insisting that all men who follow the dictates of their consciences must go free on that account, alone.
Unless the jury can exercise its community conscience role, our judicial system will have become so inflexible that the effect may well be a progressive radicalization of protest into channels that will threaten the very continuance of the system itself. To put it another way, the jury is, both by original design and by the nature of its own inherent structure, the safety valve that must exist if this society is to be able to accommodate itself to its own internal stresses and strains. If the jury can negate both law and fact, then it can express the deep desires of the community it represents as to whether it feels that, under certain circumstances, some laws should indeed be broken with impunity. In this manner, this ancient institution can significantly affect or even determine whether men shall survive or perish, eat or go hungry, or live in liberty or as slaves.88
Sax and Kunstler’s unabashed advocacy of jury independence was widely discussed in academic and professional circles, and led to the publication of a number of articles on jury independence, in law reviews and elsewhere. One of the first to take up the gauntlet was Michael E. Tigar, who had worked briefly with Kunstler on the Chicago Seven conspiracy trial.89 Tigar urged much broader participation by both defendants and jurors in the trial process, in order to circumvent the excessive formality and ritual of criminal procedure:
The “men of the country” become increasingly important as the system itself becomes suspect, for they are presumably less tempted to manipulate clients and concepts for their own benefit. A judgment by the community, moreover, seems inherently more trustworthy than one rendered in a contest of champions. With regard to the role of both defendant and jury, then, there is needed an assault on the old procedural forms, to see whether the courtroom can accommodate the sensibilities of those who are most profoundly affected by what goes on there.90
Tigar went beyond the usual arguments for jury law-judging and insisted that jurors should be encouraged to “participate in the questioning of witnesses, clarifying any lingering uncertainties or doubts.”91 Tigar later wrote a play extolling jury independence in the context of the John Peter Zenger trial, The Trial of John Peter Zenger, A Play in Five Scenes. The play was originally performed at the annual meeting of the American Bar Association on August 10, 1986.92
Another author, Professor Jon M. Van Dyke, took on the jury independence arguments directly, arguing that the jury is inherently a political institution.93 His sentiments were echoed two years later by Professor Alan Scheflin,94 who had been one of the attorneys in United States v. Dougherty. The number of articles published on the subject was increasing in both number and stature.95 Most of the published articles were either supportive or neutral towards jury independence, and initially focused (at least implicitly) on the right of jurors to acquit political protesters in anti-war demonstration cases. Opponents of jury rights had won the immediate battle in the courts and had little incentive to publicize a theory they opposed, if only to refute it.
The publicity the doctrine of jury independence received after the Vietnam War ended represents a new phenomenon. When John Lilburne printed pamphlets advocating jury rights in the seventeenth century, he did so with regard to a specific cause. When the cause was over, the pamphlets disappeared. A quarter of a century later, when William Penn and the Quakers ceased to be subject to the punishments of the Conventicles Act, the pamphlets they had been distributing urging jury rights ceased to be published as well. The dozens of tracts written urging jury nullification in libel cases evaporated when Fox’s Libel Act was passed. Even Lysander Spooner’s Essay on the Trial by Jury was written with a specific law in mind—the Fugitive Slave Act of 1850. With the passage of the Thirteenth Amendment, Spooner’s Essay was to become a novelty.
By the early twentieth century, it seemed that jury independence had become a doctrine of the past, anachronistically surviving in a few isolated jurisdictions and watered down and disparaged where it remained. Rejected by the federal courts and most state courts, it served as interesting fodder for an occasional law review article.96 Jury independence was not advocated openly, nor had it been a particularly lively topic of discussion since the demise of slavery and the repeal of the Fugitive Slave Act of 1850. The political nature of jury independence allowed the doctrine largely to hibernate until the 1960s, when the Vietnam war cases brought it to the forefront as a tool of social protest.
However, as the last quarter of the twentieth century approached, the rapidly increasing number of academic law journals97 required an increasing number of articles, in order to fill the equally increasing number of pages. Articles on jury independence found their way onto many of those pages. For the first time in 800 years of history, the doctrine of jury independence had established a life of its own, apart from any particular issue or policy. The gauntlet handed down by Sax and Kunstler was picked up by hundreds of authors, ranging from state and federal judges98 to community college instructors.99
A popular, amorphous attitude of distrust and contempt towards government became characteristic among many segments of the American people during this period, and jury independence arguments dovetailed with this new attitude perfectly. The proportion of eligible voters who chose to stay home on Election Day approached—and occasionally surpassed—50 percent. Watergate, runaway budgets, a stagnant economy and standard of living, special-interest legislation, confiscatory taxation, and a general sense that Congress had become its own favorite constituency weakened the confidence many Americans had in their government, their courts, and in their law. A growing number of moderates and conservatives began urging jury independence, on the same grounds that the ‘radical’ William Kunstler had. The system was widely perceived as out of control, and independent juries became a rallying cry among diverse elements of both the left and the right. Even though the Vietnam War was over, many reasons still existed to urge juries to pass an independent judgment on the laws they were called upon to enforce.
Notes
1. 156 U.S. 51 (1895).
2. 276 Pa. 566, 570 (1923).
3. 143 Pa. 64 (1891).
4. Id. at 85.
5. SMITH-HURD REV. ST. 1929, c. 38, § 741.
6. 343 Ill. 146 (1931). The instruction given by the trial court was that “[t]he court is the sole judge of the law in the case, and it becomes the duty of the jury to follow the law as it is given to it by the court in his instructions,’ and that ‘you have no right to disregard it, or disregard any portion thereof, but you are bound to take the whole of it as it is given to you by the court, and apply it to this case.” Id. at 174.
7. Id. at 156.
8. Id. at 157.
9. Id. at 173.
10. Id. at 173:
If it be admitted to be the fact (I deny that it is the fact) that the statute of 1827 which provided that the jury in a criminal case should be the judges of the law and the fact did make a change in the law as it had theretofore existed, it does not follow that the statute is unconstitutional.
11. Id. at 162.
12. Id. at 167.
13. Professor Mark DeWolfe Howe described this decision as concluding that “the legislature in 1827 had, accordingly, violated the constitution of 1870.” Mark DeWolfe Howe, Juries as Judges of Criminal Law, 54 HARV. L.REV. 582, 613 (1939).
14. INDIANA CONST. art. I § 19.
15. 236 Ind. 549 (1957).
16. Id. at 554-555.
17. Id at 556. This is not true; the State Constitutions of Georgia and Oregon contain similar provisions.
18. Id at 559.
19. MARYLAND CONST., DECLARATION OF RIGHTS, art. 23.
20. 29 Md.App. 45 (1975).
21. Id. at 51.
22. Id.
23. Id., cf. United States v. Datcher, 830 F.Supp. 411 (M.D.Tenn. 1993)(holding that the jury, as conscience of the community, could be informed by the defendant of the lengthy mandatory minimum sentences the defendant faced if convicted of attempted distribution of controlled substances, where the defendant’s purpose in informing the jury was the hope that the jurors would nullify the law).
24. 292 Md. 84 (1981).
25. Id. at 89.
26. 218 N.W.2d 921, 924 (Iowa 1974).
27. Id.
28. PATTERN INSTRUCTIONS FOR KANSAS § 51.03 (1971), 36-37, as quoted in JON M. VAN DYKE, JURY SELECTION PROCEDURES: OUR UNCERTAIN COMMITMENT TO REPRESENTATIVE PANELS, 241 (1977). Van Dyke goes on to quote the “Notes on Use”:
Arguably, the above instructions should bring into play the underlying value of trial by jury; the application of community conscience. If extenuating circumstances make an otherwise culpable act excusable, a jury should feel empowered to so find. Community standards are more apt to be applied if the jurors are told they are free to do what, overall, seems right to them.
Id. at 241-242.
29. Kansas v. McClanahan, 212 Kan. 208, 216 (1973).
30. Id. at 212.
31. Id. at 213. See also Gary J. Jacobsohn, The Right to Disagree: Judges, Juries, and the Administration of Criminal Justice in Maryland, 1976 WASH. U. L.Q. 571 (1976).
32. VAN DYKE, supra note 28, 242.
33. 3 U.S. 1 (1794).
34. 417 F.2d 1002 (4th Cir. 1969).
35. 473 F.2d 1113 (D.C. Cir. 1972).
36. Moylan, supra note 34, 1004.
37. Id. at 1006.
38. Id.
39. Dougherty, supra note 35, 1136-1137.
40. Id. at 1133.
41. Id. at 1130.
42. Id. at 1134.
43. Id. at 1134-1135.
44. David C. Brody, Sparf & Dougherty Revisited: Why the Court Should Instruct the Jury of its Nullification Right, 22 AM.CRIM.L.REV. 89, n. 146 (1995); David C. Brody & Craig Rivera, Examining the Dougherty ‘All-Knowing Assumption’: Do Jurors Know About their Nullification Power?, 33 CRIM.L. BULL. 151 (1997).
45. Brody, supra note 44, 109-110.
46. Dougherty, supra note 35, 1140.
47. Id. at 1141.
48. Id.
49. Id. at 1136:
To tell him expressly of a nullification prerogative, however, is to inform him, in effect, that it is he who fashions the rule that condemns. That is an overwhelming responsibility, an extreme burden for the juror’s psyche.
50. Id. at 1143-1144.
51. United States v. Spock, 416 F.2d 165, 180-183 (1st Cir. 1969).
52. Id. at 180-181.
53. Id. at 182.
54. Id.
55. Id. at 182-183.
56. United States v. Desmond, 670 F.2d 414 (3rd. Cir. 1982).
57. Id.; see also United States v. Palmeri, 630 F.2d 192 (3rd. Cir. 1980); United States v. Frezzo Brothers, Inc., 602 F.2d 1123 (3rd Cir. 1979). But see United States v. Childress, 746 F.Supp. 1122 (D.D.C. 1990)(approving special interrogatory verdict form in multi-defendant drug conspiracy case, saying “[t]he verdict form employed by the Court was consistent with the Court’s duty to remind the jury of its obligation to reach a verdict based on an application of the law to the evidence seen and heard in the courtroom during the trial and not based on extraneous influences.”)
58. Desmond, supra note 56, 416.
59. Id. at 418.
60. U.S. CONST. art. III, § 3(1) requires a special finding that two witnesses have testified to the same overt act of treason before a defendant can be convicted. See Kawakita v. United States, 343 U.S. 717 (1952). See also United States v. Uzzolino, 651 F.2d 207 (3rd Cir. 1981)(a determination of certain facts may be required in conspiracy cases, but may be obtained by submitting special interrogatories to jury after they have returned a general verdict of guilty).
61. Desmond, supra note 56, 421.
62. 391 U.S. 145 (1968).
63. Id. at 149.
64. Id. at 155-156.
65. Id. at 157.
66. 419 U.S. 522 (1974).
67. Id. at 537.
68. Id. at 530.
69. Id.
70. Irwin A. Horowitz, Jury Nullification: The Impact of Judicial Instructions, Arguments, and Challenges on Jury Decision Making, 12 LAW & HUM. BEHAV. 439 (1988); Irwin A. Horowitz, The Effect of Jury Nullification Instructions on Verdicts and Jury Functioning in Criminal Trials, 9 LAW & HUM. BEHAV. 25 (1985).
71. Horowitz, Jury Nullification, supra note 70, 450-452.
72. Horowitz, The Effect of Jury Nullification Instructions, supra note 70, 33.
73. There is some chance that reaffirmation of one’s knowledge could have an effect, but it is likely to be a positive effect-leading to more responsible jury deliberation.
74. See Stanley Milgram, Behavioral Study of Obedience, 67 J. ABNORMAL & SOC. PSYCHOL. 371 (1963).
75. Id. at 376.
76. Id.
77. Id. at 377.
78. Id. at 374.
79. United States v. Anderson et al., 356 F.Supp. 1311 (D.N.J. 1973).
80. Roger Park, The Entrapment Defense, 60 MINN. L. REV. 163, 188 (1976).
81. VAN DYKE, supra note 28, 238-239.
82. United States v. Anderson et al., Transcript, 8386-8394. Kairys’ argument is reproduced at length in VAN DYKE, supra note 28, 239-240. A few excerpts follow:
Now, I’d like to move on—and I am almost done now—to the second reason why I think this case is not simple and why I think these defendants should be acquitted. And that’s jury nullification.
Now, the term “nullification” I think is a bad term. It’s used to describe the power of a jury to acquit if they believe that a particular law is oppressive, or if they believe that a law is fair but to apply it in certain circumstances would be oppressive . . .
This power that jurors have is the reason why we have you jurors sitting there instead of computers. Because you are supposed to be the conscience of the community. You are supposed to decide if the law, as the Judge explains it to you, should be applied or if it should not. Nothing the Judge would say to you is inconsistent with this power.
. . . You decide, considering the circumstances of the case, should you brand the defendants as criminal. And it’s very important in that regard, that you are only required to say guilty or not guilty. That’s what people call the general verdict. You don’t have to give reasons. You don’t have to give specifics. You don’t have to justify what you did; and if you say not guilty, it can’t be reviewed by any Court . . . Are they deserving of the community’s scorn—you being the community—or are they not deserving of the community’s scorn? That’s what the question is.
Now, the defendants have violated the law, and they’ve destroyed property, and they’ve explained to you how they did this, to preserve life and to preserve liberty.
Now, as I indicated in my opening statement, that may sound radical, but I submit that it’s in the best American tradition. And it starts, of course, with George Washington, Thomas Jefferson, and Benjamin Franklin, all of whom violated the law to preserve life and liberty.
The Boston Tea Party, the people who did that violated the law to preserve life and liberty, and I explained some New Jersey Tea Parties that were here. One of them involved someone from Cumberland County [New Jersey] to whom there is a statue in a square in a town in Cumberland County. He became the Governor after he did that and after a jury refused to indict or convict him.
[The next several paragraphs described the defendants on trial and their particular decision to commit an act of civil disobedience.]
. . . You must judge who went too far. Did the Government go too far in prosecuting the war? Did the defendants go too far? Did the F.B.I. go too far? And I think those kinds of judgments really require you to look at and in some sense judge yourself. The prosecution is asking you to publicly brand these people as criminals; and if that’s done it will be done in your name. No one else’s.
I urge you to say no to the prosecution, say no to this horrible war, say no to the F.B.I.’s manufacture of a crime, and say yes to some hope for the future. Say yes for life. Thank you.
83. 57 YALE REVIEW 481 (1968).
84. Id. at 487.
85. Id. at 493.
86. William M. Kunstler, Jury Nullification in Conscience Cases, 10 VA. J. INT’L. L. 71 (1969).
87. See United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied 410 U.S. 970 (1973), United States v. Berrigan, 283 F.Supp. 336 (D. Md. 1968).
88. Kunstler, supra note 86, 83.
89. Dellinger, supra note 87. Tigar had been retained to draft pre-trial motions.
90. Michael E. Tigar, The Supreme Court—Foreword, 84 HARV. L. REV. 1, 27 (1970).
91. Id.
92. For a review of the play see James M. Treece, Look To Your Hearts As Well, 66 TEX. L. REV. 715 (1988).
93. Jon M. Van Dyke, The Jury as a Political Institution, 16 CATH. LAW. 224 (1970), reprinted from 3 CENTER MAGAZINE 2 (March, 1970).
94. Alan Scheflin, Jury Nullification: The Right To Say No, 45 S. CAL. L. REV. 168 (1972).
95. Some of the law review articles discussing jury nullification in 1993 include Elizabeth T. Lear, Is Conviction Irrelevant?, 40 U.C.L.A. L. REV. 1179 (1993); Todd Barnet, New York Considers Jury Nullification: Informing the Jury of Its Common Law Right to Decide Both Facts and Law, 65 NOV. N.Y. ST. B.J. 40 (1993); Hon. Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law To Do Justice, 30 AM. CRIM. L.REV. 239 (1993); Michael J. Saks, Judicial Nullification, 68 INDIANA L.REV. 1281 (1993); M. Kristine Creagan, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L.REV. 1101 (1993); James L. Cavallaro, The Demise of the Political Necessity Defense: Indirect Civil Disobedience and United States v. Schoon, 81 CAL. L.REV. 351 (1993); Lt. Comm. Robert E. Korroch &Major Michael J. Davidson, Jury Nullification: A Call for Justice or An Invitation to Anarchy?, 139 MIL. L.REV. 131 (1993); George C. Thomas and Barry S. Pollack, Saving Rights from a Remedy: A Societal View of the Fourth Amendment, 73 B.U. L. REV. 147 (1993); Colleen P. Murphy, Integrating the Constitutional Authority of Civil and Criminal Juries, 61 GEO. WASH. L.REV. 723 (1993); Joseph L. Galiber, et al., Law, Justice andJury Nullification: A Debate, 29 CRIM. LAW BULLETIN 40 (1993); Elena Luisa Garella, Reshaping the Federal Entrapment Defense: Jacobson v. United States, 68 WASH. L.REV. 185 (1993); William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1703 (1993); Richard A. Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. REV. 371 (1993). See also Proceedings of the 53rd Judicial Conference of the District of Columbia Ckt., 145 F.R.D. 149 (1993).
96. For representative early twentieth century articles on jury rights, see Amasa M. Eaton, The Development of the Judicial System in Rhode Island, 14 YALE L.J. 148 (1905); Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910); Edson Sunderland, The Inefficiency of the American Jury, 13 MICH. L. REV. 302 (1915); Edmund Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 YALE L.J. 575 (1923), John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. JUD. SOC’Y 166 (1929); Thomas James Norton, What a Jury Is, 16 VA. L. REV. 261 (1930); R.J. Farley, Instructions to Juries—Their Role in the Judicial Process, 42 YALE L.J. 194 (1932); Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L. REV. 582 (1939); Samuel Dennis, Maryland’s Antique Constitutional Thorn, 92 U. PA. L. REV. 34 (1943).
97. LAWRENCE FRIEDMAN, HISTORY OF AMERICAN LAW, 693 (1985):
The few university law reviews of the 19th century had grown to an incredible number by the 1980s. There were probably on the order of one hundred and fifty. Virtually every law school, no matter how marginal, published a review as a matter of local pride. Somehow, all of these thousands of pages filled up with words.
98. See David L. Bazelon, The Morality of the Criminal Law, 49 S. CAL. L.REV. 385 (1976); Frank A. Kaufman, The Right of Self-Representation and the Power of Jury Nullification, 28 CASE W. RES. L.REV. 269 (1978); Noel Fidel, Preeminently a Political Institution: The Right of Arizona Juries to Nullify the Law of Contributory Negligence, 23 ARIZ. ST. L.J. 1 (1991).
99. Russell Richardson, Jury Nullification: Justice or Anarchy?, 80 CASE & COM. 30 (1975). Richardson was an instructor at East Arkansas Community College.