Jury nullification is the power and ability of a criminal trial jury, federal or state, to acquit the defendant not only on the "facts" of the case but to declare the law illegal, nonsensical, or otherwise simply not justifiably enforceable.  I.e., the jury can "nullify" the law.

That is not the position take by our modern courts.

It is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law, as it is laid down by the court.  Sparf v. United States, 15 S.Ct. 273, 282; 156 U.S. 51 (1895).  

The correct principle of law, as I shall demonstrate, is given in the dissenting opinion of this case, starting on page 296.  This dissent is the one frequently quoted by FIJA, the Fully Informed Jury Association, Post Office Box 59, Helmville, Montana  59843.  That dissent holds that, 

"The judge, by instructing the jury that they were bound to accept the law as given to them by the court, denied their right to decide the law."  Sparf at 297 (dissent).

Dissents are not followed as "law" by succeeding courts, they are merely disagreements with the holding of the majority.  As one Supreme Court critic put it, "with five votes [out of nine] you can do anything."

This was not the law in England.

"For to say, they [jurors] are not at all to meddle with, or have respect to Law in giving their Verdicts, is not only a false position, and contradicted by every days experience; but also a very dangerous and pernicious one, tending to defeat the principal end of the Institution of Juries, and so subtilly to undermine that which was too strong to be batter'd down."

[Sir John Hawles, The English-man's Right, pages 10-11 (1680) (emphasis in original) (Solicitor-General of England in the reign of William III).]

"But if by finding against the Direction of the Court in matter of Law, shall be understood, that if the Judge having heard the Evidence given in Court, (for he can regularly know no other, though the Jury may) shall tell the Jury upon this Evidence, the Law is for the Plaintiff, or the Defendant, and the Jury are under pain of Fine and Imprisonment to Find accordingly; then 'tis plain the Jury ought of Duty so to do.  Now if this were true, who sees not that the Jury is but a troublesome Delay, of great Charge, much Formality, and no real use in determining right and wrong, but meer Ecchos to sound back the pleasure of the Court; and consequently that Tryals by them might be better abolish'd than continued?  which is at once to spit Folly in the Faces of our Venerable Ancestors, and enslave our Posterity."

[Hawles, pages 28-29.]

"[F]or the Law of England hath not placed Tryals by Juries to stand between men and Death or Destruction to so little purpose as to Pronounce men Guilty, without regard to the nature of the Offence, or to what is to be Inflicted thereupon."

[Hawles, page 39.]

This was not the law in the United States.

"The defense can argue law to the jury before the court gives instructions."
[Stettinius v. United States, Federal Case No. 13,387 (C.Ct. D.C. 1839), 22 Federal Cases 1322, 1333 quoting United States v. Fenwick, Federal Case No. 15,086 (1836).]

" Judges in some western and southern states were not allowed to state law (to overcome judicial interference)"

[5 The Law Reporter 1, 10 (1842).]

"An impartial jury was required by the common law and secured by the constitution."
[Marshall, Chief Justice, United States v. Burr, Federal Case No. 14,692g (C.Ct. D. Va. 1807).]

"[H]istorical practice is relevant to what the Constitution means by such concepts as trial by jury."  

United States v. Gaudin, 115 S.Ct. 2310, 2316 (1995).

Under the common law, as expounded by Sir John Hawles, the jury had the right to judge the laws as well as the facts.  Anything less made the jury partial in favor of the judge.  If the judge was biased in favor of the State, the defendant, guilty as sin or innocent as a lamb, didn't have a prayer.

 Supposedly, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors.  The failure to accord an accused a fair hearing violates even the minimal standards of due process.  Irvin v. Dowd, 81 S.Ct. 1639, 1642 (1961).

At least that's the rhetoric.

" [T]he ability of the judge to communicate his opinions to the jury through raised eyebrows, choice bits of sarcasm, and questioning the witnesses strays into advocacy."  Bracy v. Gramley, 81 F. 3d 684, 701 (7th Cir. 1996) (dissent).

Few claims are more difficult to resolve than the claim that the trial judge, presiding over a jury trial, has thrown his weight in favor of one side to such an extent that it cannot be said that the trial has been a fair one.  Bracy at 702.

 It is my contention that no criminal trial in the United States is a fair one by those standards.  The arrogance, bias, partiality, venality and corruption of almost all our federal and state judges are too easily demonstrated.

Let the judges speak for themselves:

The trial court denied defendant's request to instruct the jury on his asserted doctrine of jury nullification.  The court also denied the government's motion to prohibit the use of this term during the proceedings and, as a result, Krzyske mentioned the doctrine of jury nullification in his closing argument.  During its deliberation the jury asked the court what the doctrine stood for.  The court responded, "There is no such thing as valid jury nullification.  Your obligation is to follow the instructions of the Court as to the law given to you.  You would violate your oath and the law if you willfully brought in a verdict contrary to the law given you in this case."  Defendant objected and claims it was error for the court to so instruct the jury.

Krzyske defines jury nullification as a jury's power to return a verdict of not guilty despite law and facts indicating guilt under the indictment.   Krzyske acknowledges at the same time that no federal court has yet specifically permitted a jury nullification instruction and that few courts have even permitted arguments to the jury on the topic urging this "doctrine."  He claims that this case is unique because the court specifically told the jury that there is no such thing as valid jury nullification.

We recently addressed the question of jury nullification in United States v. Avery, 717 F. 2d 1020 (6th Cir. 1983), cert. denied, 104 S.Ct. 1683 (1984), in the following terms:

Defendant's final contention is that the district court committed reversible error when it refused to instruct the jury that it had the power to acquit the defendant even though he was guilty of the charged offense.  The instruction itself reads that "a jury is entitled to acquit the defendant because it has no sympathy for the government's position."

This argument is completely without merit.  Although jurors may indeed have the power to ignore the law, their duty is to apply the law as interpreted by the court and they should be so instructed.

Id. at 1027 (citations omitted).  A jury's "right" to reach any verdict it wishes does not, however, infringe on the duty of the court to instruct the jury only as to the correct law applicable to the particular case.

The right of a jury, as a buffer between the accused and the state, to reach a verdict despite what may seem clear law must be kept distinct from the court's duty to uphold the law and to apply it impartially.  This has been recognized by the Supreme Court in Horning v. District of Columbia, 41 S.Ct. 53, 54 (1920), where Justice Holmes stated, "[T]he jury has the power to bring in a verdict in the teeth of both law and facts.  But the judge always has the right and duty to tell them what the law is upon this or that state of facts . . ."  This directive has been recognized by this court in United States v. Burkhart, 501 F. 2d 993, 996-97 (6th Cir. 1974), where we approved a district court's instruction that the jury consider only the facts and law before them.  In light of Horning, Avery, and Burkhart, we are compelled to approve the district court's refusal to discuss jury nullification with the jury.  To have given an instruction on nullification would have undermined the impartial determination of justice based on law.

Thus, we find no merit in the defendant's objection concerning the court's instructions to the jury.

Based on the analysis above, we AFFIRM the district court in all respects.

MERRITT, Circuit Judge, dissenting.

I disagree with the Court's disposition of this case.  I would reverse the case and remand it for a new trial.  It is clear to me that the District Court erred in responding to the jury's specific question concerning "jury nullification" raised after several hours of jury deliberation.  The jury returned to the courtroom concerned about the issue of "jury nullification."  The jury wanted to know to what extent it had the right to acquit the defendant because it disagreed with the government's prosecution.  It wanted to know what was meant by the idea of "jury nullification."  The Court responded by telling the jury that it had no power to engage in jury nullification and that was the end of the matter.  It told the jury in effect that it had no general authority to veto the prosecution.  This is simply error.  The Court should have explained the jury's function in our system.  Our Court has made it clear in the past that the jury does have veto power and the jury should have been so instructed.  For example, in United States v. Wilson, 629 F. 2d 439, 443 (6th Cir. 1980), in an opinion which I wrote for a unanimous panel we stated:

In criminal cases, a jury is entitled to acquit the defendant because it has no sympathy for the government's position.  It has a general veto power, and this power should not be attenuated by requiring the jury to answer in writing a detailed list of questions or explain its reasons.  The jury's veto power was settled in Throckmorton's case in 1544 according to Professor Plucknett:

In Crompton's treatise on the jurisdiction of courts (1594) we read:

"Note that the London jury which acquitted Sir Nicholas Throckmorton, Knight, about the first year of Queen Mary, of high treason, was called into the Star Chamber in October, 1544 (sic), forasmuch as the matter was held to have been sufficiently proved against him; and eight of them were there fined in great sums, at least five hundred pounds each, and remanded back to prison to dwell there until further order were taken for their punishment.  The other four were released, because they submitted and confessed that they had offended in not considering the truth of the matter."

* * *Throckmorton's prominent share in Wyatt's rebellion put his guilt beyond the slightest question, but he was a protestant hero to the Londoners, and the jury's verdict was purely political.  From now onwards the jury enters on a new phase of its history, and for the next three centuries it will exercise its power of veto on the use of the criminal law against political offenders who have succeeded in obtaining popular sympathy.  Plucknett, A Concise History of The Common Law 133-34 (5th ed. 1956).

The District Court gave short shrift to this legal tradition and made no effort to explain to the jury its historical role as the protector of the rights of the accused in a criminal case.  Our Court unfortunately has done no better.

I would reverse the case and remand it for a new trial with instructions that the Court advise the jury, if requested, concerning the jury's general veto power," in accordance with the Wilson case and the historical prerogatives of the jury to return a general verdict of not guilty.

ON REHEARING

MERRITT, Circuit Judge, dissenting.  For the reasons stated in my panel dissent, I would grant en banc rehearing on the "jury nullification" issue.  The law is settled that the jury has the power to decide against the law and the facts.  The jury specifically asked about its power to do so, and was told by the District Court that it had no such power.  The least that the jury should have been told was "the jury has the power to bring in a verdict in the teeth of both law and facts . . . the technical right, if it can be called so, to decide against the law and the facts . . ."  Horning v. District of Columbia, 41 S.Ct. 53, 54 (1920).  These were the words of Justice Holmes speaking for the Court.  The Supreme Court has never taken these words back or indicated that they do not properly state the law.  The District Court and our Court are simply refusing to apply these words because they do not agree with them.  It is not our prerogative to overrule the Supreme Court.

[U. S. v. Krzyske, 836 F. 2d 1013, 1021-22 (6th Cir. 1988).]

 The following words of the Supreme Court need to be read several times by the judges of today's courts.

"The guarantees of jury trial in the Federal and State Constitutions reflect 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.  (Footnote 23)

Footnote 23:  "The [jury trial] clause was clearly intended to protect the accused from oppression by the Government. *  *  *."  Singer v. United States, 85 S.Ct. 783, 788 (1965),  "The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen.  So that trial by jury is more than an instrument of justice and more than one wheel of the constitution:  it is the lamp that shows that freedom lives."  P. Devlin, Trial by Jury 164 (1956).  (End of Footnote)

Those who wrote our constitutions knew from history and 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 the criminal law 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 Dues Process Clause of the Fourteenth Amendment, and must therefore be respected by the States."

Duncan v. State of Louisiana, 88 S.Ct. 1444, 1451 (1968).

The problem is that we have judges making decisions they have no right to make.  This is not anything new.

"In the state courts, New York's Court of Appeals split on the question [of jury nullification] in 1804, and finally denied the right in 1863.  A Massachusetts attorney risked contempt by arguing law contrary to the direction of the court in 1808, and by doing so he obtained an acquittal for his client.  The same year, the jury was given the right by statute to decide law as well as fact, but the jurors had the option to return a special verdict for a general verdict subject to the opinion of the court on a point stated.  This statute was repealed in 1836, but it was held permissible for a lawyer to argue law contrary to the direction of the court in 1847, although the jury was charged to take its law from the court.  A statute gave the jury the power to decide law in criminal cases in 1855, but, despite this statute, the supreme court of the state held that law was for the judge to decide."

[Moore, The Jury, Tool of Kings, Palladium of Liberty, page 151 (1973).]

Jeremy Bentham, a noted English legal scholar, had a few choice words to say about where we get our judges from:

"Filling the bench from no other fund than the bar, is it not exactly such a mode as if boarding-school-mistresses and governesses, were never to be chosen but from brothels?"

[Moore, page 159.]

"Judges are the chief competition to the jury."

Moore, page 159.

As competition the rulings of judges concerning jury nullification make sense, even if such rulings are in fact  unconstitutional.  Courts must presume... 

"that  jurors, conscious of the gravity of their task, attend closely the trial court's instructions in a criminal case."  
[Francis v. Franklin, 105 S.Ct. 1965, 1976 note 9 (1985), and that they follow those instructions.  United States v. Houlihan, 92 F. 3d 1271, 1287 (1st Cir. 1996).]

"Jurors do not have to be informed of jury nullification power or possible sentence."  

United States v. Calhoun, 49 F. 3d 231, 236 note 6 (6th Cir. 1995).

"Jurors possess raw power . . . which defense counsel may not press for."

Scarpa v. Dubois, 38 F. 3d 1, 11 (1st Cir. 1994).

"The question of whether an offense is a crime of violence for purposes of use of firearm is a question of law which should not be submitted to the jury."  

United States v. Credit, 95 F. 3d 362, 364 (5th Cir. 1996).

How did we get in this mess?

"[T]his Court's constitutional decisions are grounded upon fundamental principles whose context does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation."  [Yates v. Aiken, 108 S.Ct. 534, 537 (1988), 484 U.S. 211.]

"The Supreme Court had already expanded the language of the Sixth Amendment well beyond its obvious meaning." [Nichols v. United States, 114 S.Ct. 1921, 1927 (1994).]

The Supreme Court did "put the brakes" on the lower courts recently.

The jury can decide mixed questions of law and fact.  United States v. Gaudin, 115 S.Ct. 2310 (1995).

That is, if the lower courts follow that decision, a dubious proposition in lights of Judge Merrit's last sentence in his dissent in U. S. v. Krzyske.

However, there is another way to nullify a bad law that no one in modern times even considers.

Decisionmakers (jury or judge) must rely on the jury's factual findings as to the disputed issues of fact.  Acosta v. City and County of San Francisco, 83 F. 3d 1143, 1147 (9th Cir. 1996).

Now let's break this down into a hypothetical situation.  Assume you are on a jury and you are faced with a defendant in a criminal case caught with a sawed-off shotgun.  The judge tells you, "You must obey the law as I give it to you, you are to judge the facts."

The law is obviously unconstitutional, no matter what your competitor (the judge) says.

The fact is up to you to determine.  If you tell the judge, "That is a broomstick, not a sawed-off shotgun," he must accept that as a fact.  He has no choice.  And, finding that the object of the prosecution for a sawed-off shotgun is--according to your verdict, a broomstick--you must acquit.

Such conduct on the part of juries, going so far as to change the historical facts of a case in order to render a verdict the jurors thought just, was a common practice in England for hundreds of years.  Green, Verdict According to Conscience (1985).

Today one also has the advantage of refusing to believe the usual parade of bribed, lying, and otherwise untrustworthy government witnesses.

Verdict According to Conscience makes interesting reading in other respects:

"John Lillburne, leader of the Levallers, appealed to the juries in his case [treason] to be "as judges of law as well as fact," in 1649.  The jury acquitted him."

[Page 153.]

"Coercion of jurors (today known as 'jury instructions') meant the loss by Englishmen of control over the law."  

[Page 154.]

Unfortunately, even if jury nullification becomes as widespread as it was in the nineteenth century, it would avail most criminal defendants absolutely nothing.  Most criminal defendants these days are terrorized into "plea bargains" by the threat of the imposition of harsh penalties if they dare to participate in a jury trial system they are already aware is "rigged" by the judge and the prosecutor anyway.  Only the bravest, the craziest, and the richest (like O. J. Simpson) even consider jury trial.