Nullifying Nullification

In more than a dozen years of conducting and observing felony jury trials, at both the state and federal level, we’ve seen enough jury nullification to know it’s a real phenomenon, and not merely anecdotal.  We’ve seen jurors refuse to convict the most obviously guilty defendant, because they felt sorry for her, or because they didn’t want to put another young black man in prison, or because they had some random political or religious agenda.  We’ve seen jurors vote to convict, even though they had reasonable doubt, because it was obvious to them that the guy must have committed the crime, even if the evidence wasn’t really there.

In other words, jurors’ assessment of the evidence often has nothing to do with their actual vote on guilt or innocence.  They take it on themselves to act as a “conscience of the community,” and frustrate the whole point of their role.  (For more on how our jury system defeats justice, see our previous post here.)

The purpose of a trial jury is nothing more nor less than to decide the official version of the facts.  That’s all.  Society needs to make a decision about what to do in this case.

The decision is purely formulaic, in criminal law: if and only if we have facts A, B and C, then the defendant has committed crime X.  If fact B is missing, crime X did not happen.  It’s up to the jury to decide whether A, B and C really are what happened.  Whatever the jury decides, that is the official version of the facts.  The system can now take whatever action is appropriate under those facts, and both the parties and society can turn the page and get on with their lives.

[Truth — that’s “Truth” with a capital “T” — is not the goal.  It’s preferable for the official facts to be as close to the Truth as possible, but even with video cameras and the testimony of a thousand angels, the real Truth is always unknowable.  At least one of the necessary facts is going to deal with what an individual was thinking at the time.  That can only ever be inferred.]

Interestingly, however, jury nullification has little to do with findings of fact, and everything to do with drawing legal conclusions from those findings of fact.  Jurors offer conclusions inconsistent with their assessment of the facts only when they are given an opportunity to do so.

The question is, why do we give jurors that opportunity in the first place?

The only purpose of a jury is to figure out whether A, B and C happened.  The problem arises when we ask them to draw the conclusion of whether the defendant is Guilty of crime X.  That’s where the nullification happens.

Jurors are told to go back into the room and figure out if A, B and C were proven beyond a reasonable doubt.  But they don’t vote on that.  They only vote on the conclusion — whether the defendant is guilty or not.

If you want to get rid of jury nullification, the simple answer is to limit the jury’s role to match its purpose.  Make the jurors vote on whether A was proven beyond a reasonable doubt, and B, and C… …and that’s it.  Let the judge do the math and determine whether the facts decided by the jury constitute a crime or not.

This would eliminate inconsistent verdicts, as well.  It can be a huge problem when a jury comes back with a Guilty on count 1 of the indictment, and a Not Guilty on count 2, when both counts shared one or more of the same elements.  Often this will happen when the jury is throwing a bone to the prosecution, acquitting what they think is the more serious charge and convicting on what they think is the lesser one (not always accurately).  That’s injustice to both sides, no matter which way you look at it, but it’s a common example of jurors trying to be fair.

If they were merely voting on whether certain facts were proven or not, and one of those facts is common to multiple counts, then the jury would only have to vote on that fact once.

So, for example, let’s say there’s an indictment charging crime X, which consists of elements A, B and C; and also crime Y, which consists of elements B, C and D.  The jury should only be given a simple form that looks like this:


And nothing more.  If a particular element requires other things to be proven (as is fairly common), each of those underlying facts should be listed, and not the general one that encompasses them.  (So if element D is only proven if the jury can find E, F and G, then D should not be listed, but E, F and G should be.)

It is not rocket science to then determine whether the jury has found the defendant to have committed any particular crime, without asking them to apply any law.  Just let them come up with the official facts, and let the judge apply the law.

Now you’re not hoping unrealistically that the jurors can remember all the instructions given to them orally, after the evidence was in, and apply the various formulas of the law perfectly.  That’s not their job, anyway.  Now you can reasonably expect the jurors to simply tell you whether facts were proven or not, which is all they’re supposed to do in the first place.

And now you’re not risking as much nullification — a juror who wants to say “Guilty” despite a lack of evidence isn’t going to be able to do so quite as easily.  Ditto for one who wants to say “Not Guilty” when they can’t deny that the elements really had been proven.

And you eliminate any chance of an inconsistent verdict.

So how come we don’t do this now?  Is there something wrong with this approach?  If so, we’d be glad to hear it.

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2 Responses

  1. Historically, and constitutionally, the role of the jury IS to act as the conscience of the community. Maybe it isn’t neat, or formulaic, but it IS the role of the jury the Founders had in mind, and intended to preserve, when the Sixth Amendment was drafted.

  2. Nathan says:

    Actually, it’s the Grand Jury that gets to be the conscience of the community, and can decide not to permit a prosecution to proceed, even if there is a sufficient evidentiary basis for an indictment.

    The trial jury isn’t supposed to do that.

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