The Other Side of Jury Nullification

Jury nullification is back in the news, thanks to a heavy handed (and most likely unconstitutional) prosecution in New York.  The local US Attorney has charged a 78-year-old man with jury tampering because:

Since 2009, Mr. Heicklen has stood there and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates a law against jury tampering.

Eugene Volokh does a good job of analysing the First Amendment issues with the prosecution, but I'm more interested in the underlying issue of jury nullification.

Jury nullification really isn't a thing in and of itself.  It's more a side effect of the prohibition against double jeopardy in the Fifth Amendment.  When a jury acquits a defendant at trial, that's the end of it.  The prosecution cannot seek appellate review of the verdict.  By contrast, a defendant can challenged the sufficiency of the evidence on appeal, although (as I've explained before) there's little chance of success.

The upshot of that setup is that a jury can return a not guilty verdict for any reason it wants, from the state's failure to prove its case to the jury's disgust at the law being enforced.  Those of the libertarian/people power persuasion see jury nullification as an unfettered good, a way for the people to check the power of the state when it comes to unpopular laws or discriminatory applications of otherwise popular laws.

That's all fine and dandy, in theory, but it strikes me as naive in practice.  After all, if we tell jurors to "render verdicts based on conscience" there's no principle that limits it to acquittals.  Judges routinely instruct jurors both to ignore evidence that comes out in court and instructs them about the burden of proof and other legal issues.  If they are free to disregard what the judge says, it could lead to all kinds of problems.

Maybe I'm just cynical, but from my experience it doesn't look like jurors give the weight they should to the judge's instructions in most cases. My completely unscientific conclusion is that the presumption of innocence and beyond-a-reasonable-doubt standard exist largely on paper at this point, not in the minds of actual jurors.  As a result, we already teeter dangerously close to a criminal justice system that makes convictions of innocent people too easy.  Any program that exacerbates that state of play can't be altogether good.

Jury nullification has a long and storied history in this country, dating back at least to the libel trial of John Peter Zenger in 1733.  But that was a different era, one in which the basics of the law was much more in the grasp of potential jurors.  In the modern era, I'm not so sure that telling jurors they can and should go rouge won't lead to more harm than good.  At the very least, it's a problem that jury nullification advocates need to face head on.

And they'll have to do better than some of the commentators to this article about the case over at Reason.  Asked to distinguish between jurors who acquit because they view the law as unjust and jurors who acquit for less lofty reasons (i.e., an all-white jury acquitting a Klansman who killed a black guy), the best they can do is a variant on the No True Scotsman fallacy - the second example isn't "really" jury nullification.  Sadly, it produces the same result, so any theoretical distinction is moot.  In any case, further informing jurors that they can do whatever the hell they want would encourage bigotry and bias as much as more principled decisions.