In the United States, we obtained much of our initial original jurisprudence from England. This “precedence” is called the common law. Because the English common law had such an impact on the development of our law it makes perfect sense that the English common law tradition of jury nullification directly influenced early American criminal trials. In the colonies, both the right to a jury trial, and the jury’s associated nullification powers, were viewed as vital to ensuring liberty.
The Founders, all of whom had the personal experience of living under an oppressive and capricious government, also believed in the importance of the right to nullification, particularly when viewed through the lens of liberty and freedom from tyranny. As one historian observed, “The writings of Jefferson, John Adams, Alexander Hamilton, and other founders–Federalists and Anti-federalists alike–all support the belief in a jury responsible for deciding both fact and law.” Similarly, jury trials and nullification were respected throughout the early days of U.S. history.[i]
Nevertheless, as the common law developed the question remained about if and how nullification would be incorporated into our system of governance. While the right to a jury trial is mentioned repeatedly throughout our founding documents, the word “nullification” is absent from all of them. Consequently, the United States Supreme Court had to grapple with this issue, and attempt to resolve it. However, their precedent regarding nullification has never entirely resolved the role of the jury in a criminal case or even the propriety of nullification.
Andrew J. Parmenter interestingly explains the history of jury nullification in the United States by describing various centuries of fluctuation. [ii] Parmenter’s description is based on a review of the case law during each period. Thus, the period of 1789–1895 is called “The Century of the Jury.” Parmenter explains that “if there was any doubt about the jury’s right to judge the law after the adoption of the Sixth Amendment, this doubt was quickly laid to rest in the Supreme Court decision of Georgia v. Brailsford, where Chief Justice John Jay instructed that juries have the right ’to determine the law as well as the fact in controversy.’”
This began to change during “The Century of the Judge” (1896-1990), when Sparf & Hansen v. United States[iii] was decided. Although Sparf generally ended the old practice of instructing the jury of its power to judge the law, the American jury refused to relinquish its nullification power, and indeed, has continuously failed to do so, even today.
Many have interpreted the Sparf Court’s condemnation of nullification as a green light to control nullification in other ways throughout the criminal process. However, the Court’s sweeping rhetoric must be read cautiously. Sparf’s holding only addressed the presence of a constitutional entitlement to lesser included offense instructions in criminal cases. Sparf did not consider or condone all other judicial attempts to control nullification. Indeed, in Sparf, and subsequent decisions, the Court acknowledged that there are some constitutional limits on what steps judges can take to avoid or trump jury nullification in criminal cases.[iv]
Parmenter describes the 1990’s as “A Decade of Debate,” citing such nullification verdicts as the Rodney King, O.J. Simpson and Jack Kevorkian cases. Regarding Simpson, Johnnie Cochran seemed to implore the jury to flex their nullification power, arguing:
You . . . police the police. You police them by your verdict. You are the ones to send the message. Nobody else is going to do it in this society. They don’t have the courage. Nobody has the courage. They have a bunch of people running around with no courage to do what is right, except individual citizens. You . . . are the ones in war; you are the ones on the front line.
We will never know whether the jury acquitted Simpson to send a message to police or because the prosecution did not prove its case beyond a reasonable doubt; nonetheless, the verdict was ridiculed across the nation. The media wondered aloud whether the jury system was in crisis. Many of these critics argued that black jurors were corrupting the justice system by bringing a biased distrust of police and prosecutors into the jury box or that they were too sympathetic to the plight of black defendants. Also, in 1995, Professor Paul Butler released a provocative article arguing that black jurors should engage in race-based jury nullification–this only added to the controversy.[v]
[ii]Parmenter, Nullifying the Jury: The Judicial Oligarchy Declares War on Jury Nullification, 46 Washburn L.J. 379 (2007).
[iii] 156 US 51 (1895).
[iv] King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom, 65 U. Chi. L. Rev. 433 (1998).
[v] Parmenter, supra.