It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do.
Edmund Burke
Understanding the Juror’s Oath
A common thread running through articles and court decisions critical of jury independence is the allegation that nullifying jurors are in some manner violating their sworn oaths. In United States v. Krzyske, the Sixth Circuit Court of Appeals approved a jury instruction warning jurors that they “. . . would violate [their] oath and the law if [they] willfully brought in a verdict contrary to the law given [to them] in this case.”1 In a more recent case, Judge Jose Cabranes, writing for the Second Circuit Court of Appeals, urged that “a refusal to apply the law as set forth by the court” is “an obvious violation of a juror’s oath and duty.”2 Neither case stated what clause of the juror’s oath would be violated, or what promise the juror would be breaking if the juror delivered an independent verdict. While different courts in different states require jurors to swear to a variety of oaths, in general jurors are not required to swear that they will follow the instructions given to them by the judge regardless of how deeply it violates their personal moral or conscientious convictions.
Juror’s oaths are not always defined by statute. In many states and in the federal courts, jurors’ oaths are “simply an old tradition judges have made up.”3 Moreover, court reporters rarely bother to transcribe the oath taken by jurors and merely insert into the record a phrase such as “the jurors were then empannelled and duly sworn.” It would seem difficult for an appellate court to discern whether jurors in fact violated an oath, when the oath taken by the jurors is not reflected in the record before them.
Some typical juror’s oaths from states where the oath is defined by statute require jurors to affirmatively answer that:
(Texas)
You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.4
(Pennsylvania)
You do solemnly swear by Almighty God [and those of you who affirm do declare and affirm] that you will well and truly try the issue joined between the Commonwealth and the Defendant(s), and a true verdict render according to the evidence.5
(Massachusetts)
You shall well and truly try the issue between the Commonwealth and the defendant (or the defendants as the case may be) according to your evidence, so help you God.6
(California)
JURY TO BE SWORN. As soon as the jury is completed, an oath must be administered to the jurors in substance, that they and each of them will well and truly try the matter in issue . . . and a true verdict render according to the evidence.7
(Ohio)
FORM OF OATH TO JURY. In criminal cases jurors and the jury shall take the following oath to be administered by the trial court or the clerk of the court of common pleas: “You shall well and truly try, and true deliverance make between the State of Ohio and the defendant (giving his name.) So help you God.”8
These sorts of oaths are certainly nothing new. Jurors have apparently been required to swear to some sort of oath ever since the late twelfth century, if not before. Actually, some of the ancient oaths may have constrained a juror’s discretion more than those quoted above. Probably the earliest oath on record was reported by Sir William Blackstone in his 1769 Commentaries on the Law of England, and dates back to the early eleventh century. This oath merely required that jurors “shall swear, with their hands upon a holy thing, that they will condemn no man that is innocent, nor acquit any that is guilty.”9 Blackstone noted that the oath he cited was probably given to grand jurors. Lysander Spooner disputed this, noting that “there was but one jury at the time.”10 Whether this oath constrained the jurors depends on whether the terms “guilt” and “innocence” were interpreted as possessing moral, as well as legal, meanings, in the twelfth century. Considering the strong influence religion had on the development of the law in early times, it is almost certain that twelfth-century jurors would have given moral interpretations great weight.
The twelfth-century justiciar Ranulph de Glanvill recorded an oath given to British Knights acting as compurgators in civil trials:
The King to the Sheriff, Health. Summon, by good Summoners, those twelve Knights R. and N. (naming each) that they be, on such a day, before me or my Justices at such a place, prepared on their oaths to return, whether R. or N. have greater right, in one Hyde of Land, or in the subject matter of dispute, which the aforesaid R. claims against the aforesaid N., and of which the aforesaid N. the Tenant, has put himself upon our Assise, and has prayed a Recognition, which of them have the greater right to the thing in question; and, in the mean time, let them view the Land or Tenement itself, of which the service is demanded; and Summon, by good Summoners, N. the tenant, that he be then there to hear that Recognition, &c.11
Towards the end of the thirteenth century, jurors were required to promise that they would “say the truth in answer to such questions as shall be addressed to them on the king’s behalf and to obey orders.”12 Jurors who violated their oath—or even had the facts wrong—were occasionally subjected to extremely cruel punishments under ancient common law through the “attaint,” at least in civil cases. Glanvill described the punishment jurors could face:
If the jurors shall, by due course of Law, be convicted, or, by legal Confession, be proved to have perjured themselves in Court, they shall be despoiled of their Chattels and Moveables, which shall be forfeited to the King, although by great clemency of the Prince, their freehold Tenements are spared. They shall also be thrown into prison, and be there detained for one year at least. In fine, deprived for ever after of their Law, they shall justly wear the mark of perpetual infamy. This penalty is properly ordained in order that a similarity of punishment may deter Men in such a Case, from the unlawful use of an Oath.13
Although jurors in criminal cases could not be subjected to an attaint, they could still be punished by the sometimes draconian contempt powers of the court. These contempt powers were probably exercised most brutally by the court of the Star Chamber, as The Trial of Sir Nicholas Throckmorton14 and others demonstrated. After the abolition of the Star Chamber in 1645 and Chief Justice Vaughn’s decision in Bushell’s Case,15 however, jurors could no longer be punished for their verdicts. Yet as much as Edward Bushell and his fellow jurors enraged the court, it does not appear that they violated their oath as jurors. A good argument can be made that a conviction would have been the true violation of their oath. When William Penn and William Mead were put to trial for “causing a tumult” by holding a Quaker meeting in Grace-Church Street, London, all their jury was required to swear was that:
You shall well and truly try and true deliverance make betwixt our sovereigh Lord the King and the prisoners at bar, according to your evidence, so help you God.16
This oath, which continued to be used with little variation until at least 176917 (and which is still used, almost verbatim, in the State of Ohio today) certainly did not require the jurors to follow the law as they were instructed by the court, and gave the jurors a wide range of discretion to allow their conscience to be their guide. For the juror to make a ‘true deliverance’ between the King and the accused merely requires the juror to return a just and conscientious verdict. If the evidence showed that the accused had done nothing wrong, the jury was obliged to say so, regard less of however many statutes may have been violated. And, as the Penn trial showed, some jurors interpreted their oath just that way.
The Juror’s Oath in Early American History
Colonial American trial jurors were probably given at least as much latitude as seventeenth-century British jurors. Reports of early cases rarely contain any citation of the exact wording of the juror’s oath. In fact, the 17-volume set of American State Trials18 is almost completely devoid of any renditions of the juror’s oaths. In Colonial Virginia, an act of the assembly passed in 1705 guaranteed trial by jury in all criminal cases, and stated that the jury would be sworn.19 The act did not specify what oath the jury would be required to swear to. Instead, Virginia courts relied on the common law of England to provide the substance of their oath.
We know that revolutionary procedure generally recognized the jury as having the final legal say upon questions of law, as Georgia v. Brailsford20 so amply demonstrated. Being charged by the Court with judging both law and fact, there was no act of rebellion in a jury choosing to nullify the law, so even the strictest oath would not be violated by a jury rendering an independent verdict. One of the earliest examples of a juror’s oath specified in American law comes from the State of Connecticut and dates back to 1823:
[G]entlemen of the jury, look on the prisoner, you that are sworn, and hearken to his cause. AB stands indicted or informed against by the name of AB, (then reading the indictment he proceeds.) Upon this indictment or information he has been arraigned, and upon this arraignment he has pleaded not guilty and for his trial (in capital cases,) has put himself on God and his country, (and in other cases) on his country, which country you are, so that your charge is to enquire whether the prisoner is guilty of the crime, whereof he stands indicted, or informed against: if you find him guilty, you will say so, and say no more: if you find him not guilty, you will say so, and say no more. Now please to attend to your evidence.21
In contrast, the Illinois statutes specified an oath for grand jury foremen, but only stated that trial jurors “shall be sworn by the justice to try the case according to the evidence.”22
Following United States v. Battiste23 and its progeny, the influence of the jury began to be devalued in American courts, and the power of the judge correspondingly increased. Many American jurisdictions began to demand more and more restrictive oaths of their jurors. By the second half of the nineteenth century, Kentucky jurors in Matthews F. Ward’s trial for murder were given a combination of instructions and oath at the beginning of the trial, as follows:
JUDGE KINCHELOE. Gentlemen: The defendant in this case has been arraigned and has entered a plea of Not Guilty, throwing himself upon God and his country for trial. You are to try him, according to your oaths, upon this indictment. If you find him Guilty, you will say so; if Not Guilty, you will thus return him to the Court. In case the killing shall be proved to have been done under the influence of excitement and passion, you may find him guilty of manslaughter, under this indictment, and will do so. Should it appear that the killing was done in self-defense, it was not an act of voluntary manslaughter, and you will find him Not Guilty.24
This combining of juror’s oaths and instructions was probably never routine practice. It is not clear from the reports whether the jurors had already been given a separate oath or not. However, it is interesting to note that in this cause, the judge not only instructed the jurors that “[i] n case the killing shall be proved to have been done under the influence of excitement and passion, you may find him guilty of manslaughter,” but more forcefully that the jurors “will do so.” Kentucky, however, had begun officially limiting the powers of jurors 24 years earlier, in the case of Montee v. Commonwealth,25 so it may not be surprising that Kentucky courts should have required jurors to swear to follow so controlling a set of instructions.
New York jurors were apparently given an oath derived from common law and not an oath formally prescribed by statute. In 1873, the New York Court of Appeals stated that a juror was required to “declare on oath that he verily believe that he can render an impartial verdict according to the evidence submitted to the jury . . . the end sought by the common law was to secure a panel that would impartially hear the evidence and render a verdict thereupon uninfluenced by any extraneous consideration whatsoever.”26 Whereas this oath did not require jurors to follow the directions of the court, it did forbid them from being influenced by any “extraneous consideration.” Whether this was intended to forbid the juror from considering questions of justice is simply not clear.
Juror’s oaths remained both lax and vague in the years between Justice Story’s opinion in Battiste and that of the United States Supreme Court’s in Sparf et al. v. United States.27 Even as the twentieth century began, jurors were still not given oaths obliging them to follow the directions of the court. In 1910, the Georgia legislature merely required criminal trial jurors to swear to “well and truly try the issue formed upon this bill of indictment, between the State of Georgia and A.B., who is charged (herein state the crime or offense) and a true verdict give, according to evidence. So help you God.”28 Whether a “true verdict . . . according to evidence” would require the juror to obediently follow the directions of the court is a matter of interpretation, which Georgians apparently thought was best left between the juror and his own conscience.
In 1935, the Pennsylvania Supreme Court reversed the conviction of one defendant in a multi-defendant case when the record failed to show that the jury had been duly sworn with responsibility for that defendant. Although the court held that “[a] defendant cannot and should not be permitted to waive the swearing of the jury. The swearing of the jury is not a mere formality . . . This omission, affirmatively shown as a fact of record, is so vital to trial by jury that further discussion is unnecessary,”29 it never specified what sort of oath would have satisfied them, or what a juror’s oath had to contain in order to be valid. They rhetorically asked “[w]hat proceedings are more vital in a criminal case than the swearing of the jury to try the cause? . . . Without destroying the safeguards of trial by jury as known to the common law, we cannot presume (that the jury was properly sworn).”30 Although the Pennsylvania Supreme Court recognized the importance of the juror’s oath, their treatment of the substance or purpose of the oath was sparse indeed.
It is almost impossible to tell what sort of obligation the modern juror’s oath is expected to place upon a juror, both because the oath itself is so vague and because it is exceedingly rare (if not entirely unknown) for a case involving juror’s oaths to be litigated. It is relatively difficult to say whether a juror choosing to render an independent verdict would give a prosecutor any grounds on which to proceed at all, even if there was sufficient evidence on which to convict, and the prosecution had the temerity to take such a case before a second jury. As a general rule, the privacy of juror deliberations makes it impossible to prove when a juror has chosen to nullify, although (as the cases below will illustrate) there have been rare exceptions. Only recently have any cases arisen where an attempt has been made to prosecute jurors, and those cases have not involved accusations that the juror violated his or her oath.
Probably the leading case involving the prosecution of a juror is United States v. Clark.31 The juror’s oath was not the subject of the Clark case. Instead, Clark involved a prosecution for criminal contempt, based upon the defendant, Genevieve Clark, concealing her previous working relationship with the accused, a William B. Foshay, during the voir dire stage of Foshay’s trial for felony mail fraud.
Genevieve Clark had previously been employed as a stenographer by Foshay’s firm. After she left that position, she worked as a cashier at the bank where Foshay kept his accounts, and where her husband was the President. Her husband no longer worked for that bank, but he and Foshay had maintained a personal relationship the court described as “cordial.”32 While there was no evidence introduced at Clark’s trial that she had ever met Foshay personally, the court believed it was “next to impossible that her husband, who was with her in the courtroom, had refrained from telling her of his own friendship for one of the prisoners at the bar.”33
Clark assured the trial court, during voir dire, that she could remain free from bias. She was asked about her past employment and told the trial court about every job she had held in the past, leaving out only her experience working for Foshay’s firm. She also failed to mention her husband’s friendship with Foshay, or that he was a customer of the bank where she had worked and where her husband had served as president. During jury deliberations, she refused to attempt to resolve her differences with other jurors (at times going so far as to put her hands over her ears), and she admitted to other jurors that she based her decision in significant part on information she received from her husband, outside of the courtroom. At the end of deliberations, hers was the sole vote to acquit Foshay.34
The Supreme Court held that Clark had willfully and deliberately concealed information from the trial court when she failed to tell it about her employment with Foshay’s firm. The court held that she had made a “positive misstatement”—lied—when she claimed her mind was free from bias.35 The Supreme Court affirmed her conviction for contempt on the grounds that Clark had obstructed the course of justice by concealing her biases and past employment in order to gain a seat in the jury box.
The court also held that, although as a general rule jury deliberations are confidential because “[f]reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world,”36 jury deliberations are no longer privileged “where the relation giving birth to [jury service] has been fraudulently begun or fraudulently continued.”37 The court maintained that the privilege did not exist where the government could establish a “prima facie case sufficient to satisfy the judge”38 that a juror had obtained her seat through some form of concealment or misconduct. The court claimed that disallowing this corroborative evidence would be “too high a price to pay for the assurance to a juror of serenity of mind.”39 Clark was punished not for her verdict, said the court, but for failing to forthrightly answer questions during voir dire, when her verdict had evidently been decided prior to trial.
There are strong parallels between the Clark case and the more recent Colorado case of Laura Kriho, a 33-year-old research assistant who was convicted in a Colorado County court on contempt of court charges in 1997, for failing to volunteer information during voir dire.40 Kriho was the last juror seated in the trial of Colorado v. Michelle Brannon41 on May 13, 1996. Brannon was charged with possession of methamphetamines. During voir dire, Kriho was asked only a few somewhat cursory questions, to which she gave appropriately cursory responses. The only question that Kriho was accused of failing to answer forthrightly was whether she cared to give a different answer to any of the over 300 questions that had already been asked of other venire-members. She said “No.”
Of course, nobody really claims that Kriho did wish to give a different answer to any of the questions. What the prosecution claims is that Kriho would have had different answers, if she had been asked those questions. One thing that seems implicit in the prosecution of Kriho was that she did not care to give a different answer to any of the questions previously asked of the other venire-members. The prosecutions claims were thus not so much that Kriho had answered any questions dishonestly, merely that she had answered them artfully, in order not to give the court any more information than necessary to answer the questions asked of her.
Kriho failed to divulge that 12 years earlier she had been arrested on a felony drug charge. She had pled guilty to that charge and been given “deferred adjudication” probation. She had never been adjudicated guilty of that, or any other, offense. “Deferred adjudication” is a probationary scheme whereby a defendant pleads guilty and is put on a stringent term of probation while the judge “defers” making a judgment of guilt. If the defendant completes their probation without any significant violations, the case is dismissed, and the defendant leaves court with a clean record. Laura Kriho completed her probation satisfactorily, and the charges against her had been dismissed.
Kriho’s drug charge had occurred more than a decade before. The case had been dismissed. She had never been convicted. Kriho had been led to believe by her previous lawyer and by the nature of the earlier proceedings that her record was clean. When, during voir dire, she was asked if she had ever been convicted of a felony or a drug charge, Kriho answered that she had not been—which was the truth. She did, however, fail to volunteer the details of the charges that had been held against her, 12 years earlier. It was for failing to volunteer this information, as well as failing to initiate a discussion about her own opinions concerning the drug laws, that Kriho was charged with contempt of court, because the court felt that she either knew or should have known that this was information the prosecution and the court would have wanted.
Laura Kriho wanted a jury trial. She and her attorney Paul Grant wanted to put the issues involved in her case to the “conscience of the community” for judgment. However, in Colorado, a criminal defendant is only entitled to a jury trial if the prosecution seeks a punishment of six months or more. District Attorney Jim Stanley informed the court that he would not seek a punishment exceeding six months, so Laura Kriho’s case was scheduled for a trial before the judge. Defense motions requesting a jury trial had been denied. In his verdict, Judge Harry E. Nieto found Kriho guilty of having “. . . misled the trial court and the trial attorneys about important matters during the jury selection process with the intent to remain on the jury and obstruct the legal process.”
Unlike the case against Genevieve Clark, Laura Kriho had forthrightly answered all the questions that were actually asked of her. Laura Kriho was convicted on the basis of her failure to volunteer information to the court and given a $1,200 fine. While Clark was found in contempt for dishonestly answering questions, Kriho was found in contempt for failing to volunteer answers to questions that were never asked. Judge Nieto’s findings of facts state the issue from his perspective:
Ms. Kriho testified that she was able to hear all of the court proceedings from her place in the courtroom. Because it was stated clearly by the judge during his voir dire, and the other jurors who testified clearly understood the need to volunteer information, and because the question was asked repeatedly to all replacement jurors, this Court finds that Ms. Kriho was aware of the prior questioning and she was given an opportunity to comment on the topics discussed. (emphasis added).
Giving someone an “opportunity to comment” is hardly the same as mandating that she do so. Yet failing to choose to comment or volunteer information when given the opportunity to do so is precisely the strange new crime for which Laura Kriho was convicted.
Tellingly, Judge Nieto did not argue that Laura Kriho could or should be punished for “violating her oath,” even if her vote on the Brannon case was based on jury nullification. He clearly stated that “[t]his case is not now and has never been about how Ms. Kriho voted during jury deliberations . . . No juror can be punished for their vote in deciding a case. Even if the juror’s vote amounts to jury nullification and flies in the face of the evidence and the law, they cannot be punished in any way.”
One cannot help but wonder whether Laura Kriho would have been prosecuted, however, if she had been an ardent advocate of the War on Drugs, had failed to say so during voir dire, and had been the only juror on the panel voting for conviction. If the prosecution against her was not aimed at vengefully persecuting her for her verdict, it should make no difference which way she voted. It appears that failing to divulge a strong opinion is only a criminal action when that opinion works against the state. The jurors who voted for Brannon’s conviction were not investigated, prosecuted, or otherwise pursued, although during their testimony at Laura Kriho’s trial several of them admitted to not volunteering equally relevant information during voir dire.
No juror in Gilpin County has ever been prosecuted after voting to convict. Just as the Court of the Star Chamber never prosecuted a juror who voted to convict, Gilpin County District Attorney Jim Stanley apparently only prosecutes jurors who vote to acquit.
Even more intriguing is the fact that shortly before the Kriho case came to trial, another Gilpin County Court Judge, Frederic B. Rodgers, published an article in the Judges’ Journal, a publication of the American Bar Association Judicial Section, decrying jury nullification and recommending precisely the same sorts of prosecutions as occurred against Laura Kriho.42 Rodgers’ article referred to jury independence advocates as “having their antecedents in the radical anti-semitic right” and recommended that judges use increasingly restrictive methods to eliminate anyone from the jury pool who is familiar with the jury nullification doctrine. Finally, he advocated prosecuting independently minded jurors for perjury or contempt of court, seemingly anticipating the prosecution against Kriho. Rodgers’ article was widely distributed within the Gilpin County Courts, and it is reported that Jim Stanley, Kriho’s politically ambitious prosecutor, was given a draft of the article before he filed the charges against Kriho.
The real weakness of Rodgers’ article is his lack of scholarship on the very subject about which he writes. He misquotes Lord Willes from the case of Rex v. Shipley,43 claims without any citation that juries were the dominant source of racial injustices during the lynching and civil rights eras, and makes several false statements about the Fully Informed Jury Association and other jury independence advocates. It is very likely that this article was the mold into which Laura Kriho’s case was forced to fit, and that Rodgers’ ideas were in effect the ‘game plan’ for Kriho’s prosecution. A rebuttal written by this author, and published in a subsequent issue of the Judges’ Journal,44 went unanswered by Judge Rodgers.
As this is written, the Kriho case is on appeal. It would be bizarre indeed to require jurors to volunteer information when we do not require the same of witnesses testifying at trial. Witnesses are never required to volunteer information, and attorneys understand that it is their job to pose questions in such a way as to obtain the information they seek. Punishing a juror who fails to volunteer information during voir dire is vindictive, harassing the juror for the failure of the prosecutor or the judge to do a competent job at questioning prospective jurors. If the question is not asked, it is grossly inequitable to demand that it be answered upon punishment of contempt.
Attorneys are often reticent to ask sufficiently probing questions of venire-members during voir dire because they are concerned with creating an adversarial relationship between themselves and the jurors who will eventually be trying their case. Too much pressure put on examining one venire-member may end up antagonizing the entire panel. It is easy to understand why an advocate wants to use voir dire to ingratiate himself with the jury and leave it to the judge to ask the hard questions necessary to weed out any potential nullifiers.
That given, it remains unfair to require a venire-member to volunteer information which he or she may be uncomfortable discussing or may not believe is relevant, merely in order to increase the comfort level of the trial attorneys. How many people would care to blurt out the details of a 12-year old dismissed drug charge in front of a room full of strangers? Must a person receiving a summons for jury service first consult a lawyer to ascertain exactly which personal details of their life might be deemed essential to divulge? Should courts appoint lawyers to indigent venire-members to help prepare them for the demands that may be made of them during voir dire?
The entire Kriho case was avoidable had the prosecutor simply asked the right questions during voir dire. Prosecutors who fail to do their job properly in court should not be set free to bedevil jurors who do their job as they see fit in the jury room. Jim Stanley had his chance to ask Kriho whatever questions he chose to put to her. Unless he is prepared to show that Kriho deliberately gave a materially false answer to a voir dire question that was actually asked of her, the only honorable thing for the Colorado courts to do would be to give Kriho an apology and thank her for her service as a juror in the case of Michelle Brannon v. Colorado.
Regent Law School professor James Joseph Duane has argued that a juror’s oath places no real obligation on a juror, that it is merely a hortatory ritual. Referring to arguments that nullifying jurors violate their oaths as “threadbare,” Duane claims that “this ominous-sounding charge has no logical substance, although it naturally carries much emotional appeal.”45 Duane points out that most juror’s oaths do not require jurors to follow the instructions given to them by the bench. Instead, they merely swear that they “will well and truly try and a true deliverance render according to the evidence, so help [me] God.” Such an oath would not preclude a juror from voting to acquit if the juror found that the defen dant was “morally blameless.” Duane goes on to question whether a juror could “well and truly try” a case and render “true deliverance,” “if they had to disregard their sense of justice to convict.”46
If a jury refuses to convict a man because of overwhelming feelings of mercy or justice, they are not returning a “false” verdict. A verdict of “not guilty” based on a jury’s notions of justice is not affirmatively declaring that he is innocent. (The same is true of an acquittal based on their conclusions that he has only been shown to be probably guilty, but not beyond a reasonable doubt). The general “not guilty” verdict is merely a shorthand way of allowing the jury to express, for reasons they need not explain, “we do not choose to condemn the accused by pronouncing him guilty.”47
Most importantly to Duane, though, is the fact that a juror’s nullification powers are constitutionally protected. Jurors’ oaths, being either statutory or created by judges, cannot act to limit a power which is grounded in the Constitution:
A jury’s latitude is deliberately protected by the Constitution. Neither the tradition nor the wording of the oath administered to the jurors, on the other hand, is so dictated. In federal court it is not even prescribed by statute. It is simply an old tradition judges have made up. If the wording of the oath poses some conflict with the jury’s constitutional prerogative to nullify, it is clear which one must yield the right of way. Courts simply have no business (much less lawful authority) asking jurors to swear to anything that would violate the Constitution or the jury’s deeply held convictions about justice.48
While the juror’s oath should certainly act to constrain a responsible juror and remind them of the gravity of a decision to nullify the law, the oath by itself does not and should not act to prohibit a juror from delivering an independent verdict, based on the facts, the law, and his or her own conscientious judgment. An oath to “well and truly try” the defendant, as was sworn to by the William Penn jury and which is still echoed in the oaths given to jurors in many states, does not even discourage the juror from well and truly deciding that the defendant is not guilty “in the teeth of both law and facts,” according to the conscientious judgment of the juror.
The juror’s oath may have more impact if jurors in criminal trials were required to answer specific issues, instead of delivering a general verdict of law and fact. However, the Constitution protects the power of juries to nullify by forbidding that criminal trial juries be required to return a special verdict except in unusual circumstances.49 Wherever a jury honestly believes that the law is being misapplied, or that the law itself is unjust, the jury in many jurisdictions may well have the option to acquit within their oath. Guilt is, at least in a significant part, a moral question. And where jurors do not have that latitude under the particular oath they have taken, their discretion still remains protected under several different clauses of the U.S. Constitution.
It is doubtful that any attempt to punish independent jurors for violating their oaths would be constitutional, especially if the jurors, when they took their oaths, had not already decided to nullify. Punishing a juror for violating his oath would arguably interfere with the freedom of speech a juror requires in the jury room, if the juror is to be able to properly perform the job—and thus, any threats of prosecution against jurors would arguably deprive the defendant of his Sixth Amendment right to trial by jury. It is not difficult to imagine that the willingness of jurors to acquit may be significantly dampened in a jurisdiction where jurors are regularly prosecuted by the government for verdicts displeasing to the state. Trial by jury cannot work if jurors are allowed to be menaced or intimidated by the government. A trial by a coerced jury is not a trial by jury in any meaningful sense of the term, and it is certainly not the trial by jury contemplated by the Founding Fathers of this country.
Even courts hostile to the doctrine of jury independence have begun to recognize that investigating or prosecuting jurors could coerce them into convicting in cases where no nullification issues are involved, because the jurors may fear being persecuted if their verdict is not acceptable to the state. A jury cannot operate if the court or the government is allowed to pry into its deliberations or intrude itself into its processes. This is one of the reasons the Second Circuit in United States v. Thomas et al.50 set such a high standard before a sitting juror bent on nullification could be excused. The Thomas case involved a single black juror sitting on the prolonged trial of a group of black defendants accused of federal narcotics charges in New York. “Juror No. 5,” as he was referred to in the opinion, made himself obnoxious to his fellow jurors, “distracting them in court by squeaking his shoe against the floor, rustling cough drop wrappers in his pocket, and showing agreement with points made by defense counsel by slapping his leg and, occasionally during the defense summations, saying “[y]eah, yes.”51
The trial court was presided over by Judge Thomas J. McAvoy, Chief Judge of the Northern District of New York. After receiving complaints about Juror No. 5 from other members of the jury, Chief Judge McAvoy held in camera52 interviews (over defense objections) with each juror, on the record, and only refrained from dismissing Juror No. 5 and seating an alternate juror because of the unanimous objections of defense counsel. McAvoy was concerned that “[j]uror No. 5’s behavior, especially in light of the court’s own inquiries of the jurors, might place him in an adversarial relationship with his fellow jurors as they began deliberations.”53 On balance, however, Chief Judge McAvoy was convinced that removing the sole black juror from the trial of several black defendants would be misinterpreted as having been motivated by race, and that any such actions may be reversible error when the juror had not been disqualified as a matter of law.
However, by the end of the third day of deliberations, at least three jurors again complained of difficulties in dealing with Juror No. 5. One juror claimed that No. 5 was “predisposed.” Chief Judge McAvoy again held in camera off the record conversations with each juror, during which several jurors complained about Juror No. 5, while a few others claimed that Juror No. 5 was being treated unfairly:
Several mentioned the disruptive effect he was having on the deliberations. One juror described him “hollering” at fellow jurors, another said he had called his fellow jurors racists, and two jurors told the court that Juror No. 5 had come close to striking a fellow juror. The judge was also informed by a juror that, at one point, Juror No. 5 pretended to vomit in the bathroom while other jurors were eating lunch outside the bathroom door. The jurors, however, were not unanimous in identifying Juror No. 5 as a source of disruption in the jury room. One juror informed the judge that friction among the jurors had been “pretty well ironed out,” and another indicated that the other jurors were in fact “picking on” Juror No. 5.54
Although several jurors claimed Juror No. 5 was refusing to convict out of racial solidarity or sympathy, this sentiment was not unanimous. Judge Cabranes noted that:
several jurors recounted Juror No. 5 couching his position in terms of the evidence—one juror indicated specifically that Juror No. 5 was discussing the evidence, and four recalled him saying that the evidence, including the prosecution’s witness testimony, was insufficient or unreliable. As for Juror No. 5, he said nothing in his interview with the court to suggest that he was not making a good faith effort to apply the law as instructed to the facts of the case. On the contrary, he informed the court that he needed “substantive evidence” establishing guilt “beyond a reasonable doubt” in order to convict.55
Following this second set of interviews, the trial judge removed Juror No. 5, over strenuous objection from the various defense counsel, finding that Juror No. 5 “was refusing to convict because of preconceived, fixed, cultural, economic, [or] social . . . reasons that are totally improper and impermissible.”56
The Second Circuit Court of Appeals held, in an opinion written by Judge Jose A. Cabranes, that it was appropriate to remove a juror from deliberations if it was clear that the juror was determined to render a nullification verdict. The Second Circuit
categorically reject[ed] the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, . . . a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.57
In spite of this ruling, Judge Cabranes—in twists of logic reminiscent of Dougherty and Moylan—praised some juries which had nullified, and recognized the power of juries to do so:
We recognize, too, that nullification may at times manifest itself as a form of civil disobedience that some may regard as tolerable. The case of John Peter Zenger, the publisher of the New York Weekly Journal acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws, are perhaps our country’s most renowned examples of “benevolent” nullification.58
Judge Cabranes finally compromised, it seems, between an all-out attack on jury nullification on the one hand, and explicit approval on the other. While he argued that “it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath,” his opinion also made it extremely—some may say, insuperably—difficult for a litigant to prove that a juror was so intent on nullifying. Judge Cabranes did not find that Juror No. 5 was intent on nullifying, so he found that the removal of Juror No. 5 from the panel was erroneous. Accordingly, the case was remanded back to Chief Judge McAvoy’s court for a new trial.
Because the Second Circuit believed that “secrecy of deliberations is the cornerstone of the modern Anglo-American jury system,”59 they held that a “court must not, however, remove a juror for an alleged refusal to follow the law as instructed unless the record leaves no doubt that the juror was in fact engaged in deliberate misconduct—that he was not simply unpersuaded by the Government’s case against the defendants.”60 (emphasis added). This is a remarkably high standard to meet before a juror may conceivably be disqualified—higher, even, than the “beyond a reasonable doubt” standard used in criminal trials, which is often claimed to be the highest standard known to law. In balancing out the risks of allowing trial courts to scrutinize jurors closely in order to prevent nullification, and of allowing nullifying jurors to proceed unchecked, the Second Circuit came down on the side of protecting the sanctity of deliberations and allowing jurors to nullify where there was any question whatsoever about why a given juror was voting for acquittal. Only where there was no question at all would the trial judge be allowed to remove the independently minded juror from the panel.
The Context Of The Juror’s Oath
It is not clear that a juror is violating his oath when he chooses to nullify. The variety of juror’s oaths, and the vagueness of some of them, probably indicate that the oaths of most jurors are not violated by the delivery an independent verdict. However, even if we assume that a juror is violating his oath, then we should ask what could justify such an action on the part of a juror. Can a juror ever be justified in violating his oath?
The juror’s oath is taken in a particular context, right after the jury is selected from the venire panel, but before the members take on their role as trial jurors. At this point, the jury has heard some information about the case during the voir dire, but they have not yet heard the court’s instructions on the law, nor have they heard the details of what the defendant, the police, or any other people have done. They are not swearing as to what they themselves have done but only as to what they anticipate they will do, based on the information that is available to them at that time.
When a juror takes his oath, he must base his pledge on certain assumptions, including a presumption that the law will be fair, and fairly applied. It seems reasonable to claim that a citizen, conscripted into serving his government, should be entitled to make the presumption that his government would not require him to participate in an injustice. By asking the juror to make certain promises through his oath, the government should be willing to promise, at a minimum, that it will not put the juror in a position where his oath can not be conscientiously fulfilled. If the premises upon which a juror agrees to swear to his oath are proven to be false, then the juror should be morally and legally absolved of any responsibility under the oath. If the law is not fair, or if it has been unfairly applied, then the government has failed to live up to its end of the bargain.
Certainly, a juror could not have been committing perjury when he or she took the oath, if he or she intended on following the law at the time the oath was taken. If the reasons for violating the oath did not become known to the juror until after the oath was taken and the trial was under way, then the juror would have the right to be released from their oath. A juror in that situation would have three choices: either tell the judge and be excused from further jury service, refuse to convict and hang the jury, or (if 11 other jurors were in agreement) nullify the law by delivering an independent verdict.
While the choice may seem to make a good deal of difference, in practice the end result is likely to be the same if only one juror in the panel believes the law is unjust or unjustly applied: a hung jury, potentially followed by a retrial. In federal court, and in some states, a verdict may be returned by 11 jurors if one juror becomes disqualified during deliberations.61 In at least one federal circuit, if a juror’s decision to nullify becomes known to the court, that is considered adequate cause to disqualify that juror.62 If two or more jurors agree that the law should not be applied, then even in those jurisdictions that allow deliberations to continue with only 11 jurors, there will be a hung jury, regardless of whether they tell the judge of their decision or return a nullification vote.63 Of course, if there are a series of such hung juries, the law may well be too divisive to ever be consistently enforced.
On the other hand, if the injustice is so palpable that the entire jury unanimously agrees the law should not be applied, then the jurors may tell the judge and cause a mistrial, or they may acquit the accused, and the prosecution will be powerless to retry the defendant. Which path the jurors choose may depend on how intensely they perceive the obligations outside the oath that touch upon them. Perhaps more important will be whether they are aware of their autonomy, or whether they feel that they have no choice but to follow the directions of the court.
Although courts are apparently very concerned with making sure jurors meet their obligations, it is very rare that courts show much concern for the rights of jurors. Jurors are probably treated more shabbily than any other participants in the criminal justice system—they are embarrassingly underpaid, often made to work hours that not one of them would choose, and given no say at all as to their working hours or conditions. They are simply told to sit down, shut up, and take orders. The only time that jurors are allowed to speak in court is during voir dire, when their most intimate secrets are made part of a public record. Perhaps the one right most important to jurors is the one most often violated: their right to privacy.
In 1929, a case reached the U.S. Supreme Court where the defendants had employed a team of fifteen private detectives to “shadow” the members of a trial jury, following them day and night, looking into their personal finances and writing daily reports to be used to attempt to discredit one or more jurors and cause a mistrial.64 The case went to the Supreme Court for a determination of whether the behavior of the defendants could be considered contempt of court, where no juror was aware of being followed, and no contact was made between any of the agents and any juror. The court ruled that the defendant’s behavior could constitute contempt, because the risk of corrupting the proceedings was so great. Moreover, the court reported that:
If those fit for juries understand that they may be freely subjected to treatment like that here disclosed, they will either shun the burdens of the service or perform it with disquiet and disgust. Trial by capable juries, in important cases, probably would become an impossibility.65
The jurors involved in the above case had already been seated in the jury box. Venire-members, however, are often subjected to treatment very similar to that disclosed in the above case, if not worse. Jury consultants and detectives have been hired to discover as much as possible about the people who could potentially find themselves on the jury, analyzing their handwriting, their body language, and the demographics of their neighborhoods.66 According to Professor Jeffrey Abramson:
Perhaps most alarming of all is the simple “community network,” or “background check,” approach. In cases where the names and addresses of potential jurors are known, some lawyers have employed field investigators or private detectives (the federal government has used the FBI) to ride through the neighborhoods of prospective jurors, interviewing acquaintances about marital problems, drinking problems, and treatment of minorities.67
The First Amendment protects the right of people to snoop into the backgrounds of venire-members, to some extent. But in this age of internet databases, the power to snoop into the most intimate details of the lives of potential jurors is chilling, and possibly unstoppable. The judge and the opposing side will not know if the defendant has hired a private detective to find out every venire-members’ shoe size, sexual preference, and social security number. Worse yet, if the opposing side has no way to know whether this has been done, it creates a prisoner’s dilemma. The defense must run this sort of background check, because the prosecution very likely has. Of course, the prosecution will have to run its check for the same reason. Everybody loses a little, because nobody wants to risk losing a lot.
Jurors expect that courts will respect and protect their privacy, at least to a reasonable extent. Many people would very likely refuse to show up for jury duty if they realized their entire lives would be put on display to help decide a battle they have no interest in. Americans take their privacy rights very seriously. At least one federal appellate court has commented that “prospective jurors will be less than willing to serve if they know that inquiry into their essentially private concerns will be pressed.”68
Very rarely do jurors stand up to protect their privacy, although courts are beginning to recognize that jury questioning can simply go too far. In 1994, a potential juror for a Denton, Texas, capital murder trial marked about a dozen of over 100 questions on a juror questionnaire “n/a” (not applicable). The inquiries covered her income, religious, and political affiliations; magazine and newspaper subscriptions; medications; television viewing habits; and other personal facts. When she asserted her right to privacy and refused to answer these same questions during voir dire, the trial judge found her in contempt of court and sentenced her to three days in jail and a $200 fine.69 After the Texas courts affirmed her conviction and sentence, she stubbornly took the case to the federal district court on a writ of habeas corpus, in the case of Brandborg v. Lucas.70 The venire-member’s name was Dianna Brandborg.
The Brandborg court recognized that jurors do have certain privacy rights but held that they had to be balanced against the need of the litigants to an effective voir dire. Although the court reversed Brandborg’s conviction, it did not do so because jurors had a per se right to privacy. Instead, it reversed her conviction because the trial court failed to inquire into whether the questions Brandborg refused to answer were either relevant or necessary to the proceedings. The court held that it is the duty of trial judges to balance the privacy rights of the jurors against the needs of the parties to adequate voir dire, so that they may intelligently exercise their peremptory challenges.
This left open the question of when a juror does have to answer a question, either in voir dire or in a juror questionnaire. In the court’s opinion, “if the issue is relevant to determining the bias or prejudice of a prospective juror then the question is proper.”71 Questions which are not relevant should be rejected by the court if submitted for juror questionnaires. Further, potential jurors should be informed at voir dire that they have a right not to answer any questions that they think are overly intrusive until there has been a judical determination that the question is relevant.72 If the issue is relevant but personal, the individual should be afforded an opportunity to answer the question in a private setting, with only the attorneys and the judge present. Any record of that portion of the voir dire should then be sealed by the court, to prevent its later disclosure. According to the court:
If a trial court determines that a specific question is relevant and after conducting a balancing of the competing interests determines that the prospective juror’s privacy rights are outweighed by the other interests, the prospective juror cannot refuse to answer the question. However, the court should provide the prospective juror with the least intrusive means to provide the information.73
The privacy rights of jurors and the due process rights of criminal defendants will in all likelihood continue to come into occasional and inevitable conflict. The Brandborg court should be commended for seriously looking at this problem and for requiring that the interests of litigants and jurors be weighed by trial courts before requiring a juror to answer invasive or prying questions. Many attorneys expressed concerns that Brandborg would destroy their right to an effective voir dire, but if trial courts properly apply the balancing test that would appear to be a gross over-reaction. As Rick Hagen, Dianna Brandborg’s attorney, noted, “[a] juror who in good faith invokes a constitutional right might just understand it when your client does.”74
It is plain that the oaths given to jurors in court are not the only obligation jurors face. Although the juror’s oath is explicit and is constantly referred to, a juror has an equally important—if not overridingly important—fundamental human obligation not to commit or contribute to an injustice. This nation expects jurors to remember this obligation when they step into court.
In not so distant times, this nation has assisted the world community in prosecuting, and even executing, those individuals who put their oaths to their government above their conscientious obligations, as when sitting U.S. Supreme Court Justice Robert H. Jackson served as chief prosecutor during the Nuremburg war crimes trials. Jurors in America are under the same moral obligation to refuse to be a part of a cruel injustice, and that obligation should be given at least as much weight as a vague and obscure oath which has developed throughout history without a significant amount of serious debate or discussion.
The Milgram studies on obedience to authority, discussed in Chapter 5, showed that Americans may all too easily set their moral responsibilities aside in compliance with the demands of authority figures. Do we want that sort of slave-like, passive response from jurors? Or do we want jurors who are willing to defy authority, if they are conscientiously convinced that what authority is demanding is unconscionable? Even those courts that have decried jury nullification seem to admit that independent juries are occasionally needed, and 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.”75 Some of the proudest moments in American jurisprudence are due to juries unwilling to commit injustice, and even some of the most stubborn judges have admitted as much.
Courts in America expect jurors to remember these other obligations, and to act in accordance with them in an appropriate case. In fact, even courts that have rejected providing jurors with instructions advising them about their nullification powers anticipate that jurors will nullify, in spite of any oath, if their conscientious obligations become far weightier than their promise to the court. Probably the best explication of this “pressure-release” conception of jury independence was made by Judge Leventhal in United States v. Dougherty. Leventhal argued that:
The jury system has worked out reasonably well overall, providing “play in the joints” that imparts flexibility and avoid undue rigidity. An equilibrium has evolved—an often marvelous balance—with the jury acting as a “safety valve” for exceptional cases, without being a wildcat or runaway institution.76
Similarly, Dean Wigmore insisted that trial by jury “supplies that flexibility of legal rules which is essential to justice and popular contentment.”77 That “flexibility” is only obtained, that “safety valve” only releases the pressure, when jurors are free to put conscientious obligations over their oaths.
How much pressure should we maintain? How flexible should the system be? At what point should jurors choose to nullify? Those are all normative questions, impossible to answer with quantitative certainty. Perhaps the question we should really ask is how flexible is the system today? Is it presently too flexible, or not flexible enough? The studies conducted by Professor Irwin Horowitz78 indicate that jurors would probably come up with verdicts that would be more widely accepted in their communities if jury nullification were explained to them by the court. This may indicate that the safety valve has become far too tightly sealed.
Jurors necessarily have a responsibility to their neighbors and to the community. The “conscience of the community” can scarcely be effective if it is forced to act in a vacuum, completely divorced from the ethical norms and values of that community. If the jurors believe that incarcerating a morally innocent defendant would cause undue hardship to his family, employer or employees, creditors, or others in the community, they may be more inclined to deliver an independent verdict, in hopes that the accused would have learned his lesson by coming so close to being convicted. If the jury, in its role as the “conscience of the community,” believes that the accused contributes to the community, they are more likely to turn a blind eye to his minor and victimless transgressions.
Paul Butler, a professor at the George Washington University School of Law, has recognized the responsibility of jurors to their community, although he unfortunately colors his thinking with racial issues that may not be applicable in this context. Butler argues in particular that black jurors should be willing to acquit black defendants found guilty of non-violent, victimless crimes, because in his words:
My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison. The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers . . . Why would a black juror vote to let a guilty person go free? Assuming that the juror is a rational actor, she must believe that she and her community are, in some way, better off with the defendant out of prison than in prison.79
Any juror legally may vote for nullification in any case, but, certainly, jurors should not do so without some principled basis. The reason that some historical examples of nullification are viewed approvingly is that most of us now believe that the jurors in those cases did the morally right thing; it would have been unconscionable, for example, to punish those slaves who committed the crime of escaping to the North for their freedom. It is true that nullification later would be used as a means of racial subordination by some Southern jurors, but that does not mean that nullification in the approved cases was wrong. It only means that those Southern jurors erred in their calculus of justice. I distinguish racially based nullification by African-Americans from recent right-wing proposals for jury nullification on the ground that the former is sometimes morally right and the latter is not.80
Jurors, white or black, have a responsibility to consider the effects their verdicts will have on the defendant before them and on their communities. Where Butler has drawn so much ire is in “argu[ing] that the race of a black defendant is sometimes a legally and morally appropriate factor for jurors to consider in reaching a verdict of not guilty or . . . refusing to vote for conviction.”81 Should white jurors be less willing to nullify in order to acquit a morally innocent defendant—white or black—when they have “some principled basis” to do so? Should black jurors be more willing to convict a white defendant even when there is “some principled basis” for refusing to convict? Is there any ethical principle that can justify bringing race into the calculus at all? It is unfortunate that Butler committed himself to a racial calculus of the role of the jury for which he has been criticized widely on all sides of the political spectrum, and on both sides of the nullification debate.82
Butler is absolutely correct in asserting that jurors should consider the effect their verdicts will have on their community, and that before delivering their verdict they should be confident their actions are not causing more harm to the community than the actions of the accused. However, if this rule is a just one, as it appears to be, then should it not more properly be applied even-handedly, regardless of the race of the defendant or the juror? An injustice does not become just if the victim does not look like “us,” whatever we may happen to look like. Damage to the community does not become negligible because the damage is felt on the other side of town.
It should be very clear that jurors should take all of their obligations seriously, and the overwhelming majority of jurors clearly do. Responsible jurors should be entitled to approach their oath, and their service, anticipating that the law will be both just and justly administered by the court and the prosecution. Only when those assumptions have been dispelled should jurors begin to consider delivering an independent verdict, and they should be fully aware of the gravity of their decision to do so. However, if jury nullification is the only route to a just and sane verdict, then jurors may be neglecting their other responsibilites if they allow their oaths to dissuade them from that course of conduct. Their oath should serve to remind them of the seriousness of the decision which lies before them, and the importance of making that decision with cool, clear minds, committed to justice, and uncluttered by prejudice, race, or bigotry of any sort.
Notes
1. 836 F.2d 1013, 1021 (6th Cir. 1988).
2. United States v. Thomas et al., 116 F.3d 606, 608 (2nd Cir. 1997).
3. James Joseph Duane, Jury Nullification: The Top Secret Constitutional Right, 22 LITIG. #4, pp. 6, 12 (1996).
4. TEXAS CODE OF CRIMINAL PROCEDURE § 35.22.
5. PENNSYLVANIA RULES OF CRIMINAL PROCEDURE 1110(b).
6. MASSACHUSETTS PROCEEDINGS IN CRIMINAL CASES Rule 278 § 4.
7. CALIFORNIA CODE OF CIVIL PROCEDURE § 604. California courts use the same oath in civil and criminal proceedings.
8. OHIO REVISED CODE § 2945.28.
9. SIR WILLIAM BLACKSTONE, IV COMMENTARIES ON THE LAWS OF ENGLAND, 302 (1769).
10. LYSANDER SPOONER, AN ESSAY ON THE TRIAL BY JURY, 86 (1852).
11. RANULPH DE GLANVILL, THE TREATISE ON THE LAWS AND CUSTOMS OF THE REALM OF ENGLAND COMMONLY CALLED GLANVILL, translated from the latin by G.D.G. Hall, Book II, Chapter XV (1181) (Reprinted 1983).
12. SIR FREDERICK POLLOCK AND FREDERICK WILLIAM MAITLAND, A HISTORY OF ENGLISH LAW, Vol. II., 645 (2nd ed., 1909).
13. GLANVILL, supra note 11, Book II, Chapter IXX.
14. How. St.Tr. 1:869 (1554).
15. How. St.Tr. 6:999 (1670).
16. The Tryal of Wm. Penn and Wm. Mead for Causing a Tumult . . . , How. St.Tr. 6:951 (1670).
17. BLACKSTONE, supra note 9, 355.
18. JOHN D. LAWSON, LL.D., ED., AMERICAN STATE TRIALS: A COLLECTION OF THE IMPORTANT AND INTERESTING CRIMINAL TRIALS WHICH HAVE TAKEN PLACE IN THE UNITED STATES, FROM THE BEGINNING OF OUR GOVERNMENT TO THE PRESENT DAYS (WITH NOTES AND ANNOTATIONS) (1915).
19. Chapter XXXII, An Act concerning Juries, ACTS OF ASSEMBLY OF VIRGINIA (1705).
20. 3 U.S. (3 Dall.) 1 (1794).
21. ZEPHANIAH SWIFT, LL.D., C.A.S., DIGEST OF THE LAWS OF THE STATE OF CONNECTICUT, 404 (1823).
22. REVISED CODE OF ILLINOIS, An Act Concerning Justices of the Peace and Constables, § 21 (1843).
23. 24 F.Cas. 1042 (D. Massachusetts 1835).
24. The Trial of Matthews F. Ward for the Murder of William H. G. Butler, Elizabethtown, Kentucky, 3 AMERICAN STATE TRIALS, 71, 75 (1854).
25. 26 Ky. (3 J.J. Marshall) 132 (1830).
26. Stokes v. The People, reported in Patrick H. Cowen, 1 REPORTS OF CRIMINAL CASES DECIDED IN THE APPELLATE COURTS OF THE STATE OF NEW YORK AND OF OTHER STATES, AND IN THE SUPREME COURT OF THE UNITED STATES, WITH NOTES, 557, 561 (1873).
27. 156 U.S. 51 (1895).
28. CODE OF THE STATE OF GEORGIA § 1005 (1910).
29. Commonwealth v. Robinson et al. (Pent, Appellant), 317 Pa. 321, 326-327 (1935).
30. Id. at 327.
31. 289 U.S. 1 (1933).
32. Id. at 7-8.
33. Id. at 8.
34. Id. at 9.
35. Id. at 10.
36. Id. at 13.
37. Id. at 13-14.
38. Id. at 14
39. Id.
40. Colorado v. Kriho, Case No. 96-CR-91 Division 1, Gilpin County, Colorado, Judge Harry E. Nieto, Presiding. (February 10, 1997).
41. GILPIN COUNTY COLORADO DISTRICT COURT CASE No . 95-CR-74.
42. Frederic B. Rodgers, The Jury in Revolt? A “Heads Up” on the Fully Informed Jury Association: Coming Soon to a Courthouse in Your Area, JUDGES’ JRL. 10-12 (Summer, 1996).
43. How. St.Tr. 21:847 (1785). Rogers claimed that Willes wrote “I admit the jury have the power of finding a verdict against the law, and so they have of finding against the evidence, but I deny that they have the right to do so.” In fact, Willes wrote precisely the opposite: “I believe no man will venture to say [jurors] have not the power, but I mean expressly to say they have the right (to judge the law).”
44. Letters and Comments, Clay S. Conrad, Not Fully Informed about FIJA, JUDGES’ JRL. 40-42 (Winter 1997).
45. Duane, supra note 3, 11.
46. Id. at 12.
47. Id.
48. Id. at 12.
49. Special interrogatories are required in prosecutions for treason, as the Constitution requires that the jury find an overt act. See Kawakita v. United States, 343 U.S. 717 (1952). See also United States v. Desmond, 670 F.2d 414 (3rd Cir. 1982)(special interrogatories permitted where they do not lead jury to its conclusion by a progression of questions each of which require an answer unfavorable to the defendant, and where the defendant did not object to their use at trial); United States v. Spock, 416 F.2d 165, 180-183 (1st Cir. 1969)(special interrogatories not permitted that may catechize a jury as to the reasons for its verdict).
50. Supra note 2.
51. Id. at 609-610.
52. Literally, “in chambers,” meaning private, not divulged to the public.
53. Thomas, supra note 2, 610-611.
54. Id. at 611.
55. Id.
56. Id. at 612.
57. Id. at 614.
58. Id.
59. Id. at 618.
60. Id. at 625.
61. FEDERAL RULE OF CRIMINAL PROCEDURE 23(b) provides:
RULE 23. Trial by Jury or by the Court
(b) JURY OF LESS THAN 12. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the 11 remaining jurors.
62. Thomas, supra note 2.
63. The number of persons refusing to convict would necessarily have to be increased in those states allowing for non-unanimous verdicts.
64. Sinclair v. United States, 279 U.S. 749 (1929).
65. Id. at 765.
66. JEFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY, 149-154 (1994).
67. Id.
68. United States v. Barnes, 604 F.2d 121, 140 (2nd Cir. 1979).
69. Rick Hagen, Juror’s Rights: Is the Enemy Armed?, 24 VOICE FOR THE DEFENSE 32 (October 1995).
70. 891 F.Supp. 352 (E.D. Tex. 1995).
71. Id. at 358. See also Aldridge v. United States, 283 U.S. 308, 314 (1931).
72. Brandborg, supra note 70, 360.
73. Id. at 361.
74. Hagen, supra note 69, 33.
75. United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972).
76. Id. at 1134.
77. John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. JUD. SOC. 166, 170 (1929).
78. 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).
79. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 679, 690 (1995).
80. Id. at 705.
81. Id. at 679.
82. Harvard Law professor Randall Kennedy claimed “jury nullification . . . is immoral and self destructive for black people.” Benjamin Weiser, U.S. Court Orders Judges to Step In when Jurors Balk, N.Y. TIMES, May 21, 1997 at A1. Santa Clara Law professor Alan Scheflin claimed that Paul Butler (along with Marcia Clark, prosecutor in the O.J. Simpson murder trial) has done a great deal of damage to the concept of jury nullification by seriously misinterpreting the concept and its application. Randy Johnson Show, KOPE Radio, Medford Oregon, May 31, 1997. See also Brian Graves, Law or Justice: Some African-Americans say jury nullification only way to correct what they see as disproportionate penalties for crack cocaine convictions, WATERLOO-CEDAR FALLS COURIER, March 16, 1997 at B1; Claude Lewis, Jury nullification driven by bitterness, PHILADELPHIA INQUIRER, June 5, 1997; James J. Kilpatrick, ‘Jury nullification’ intends to subvert the criminal justice system, TAMPA BAY GAZZETTE, May 30, 1997; Editorial, Should Juries be allowed to weigh social injustice?, SEATTLE POST-INTELLIGENCER, May 1, 1997.