Justice Joseph Story of the U.S. Supreme Court once wrote, “Every person accused as a criminal has a right to be tried according to the law of the land—the fixed law of the land, and not by the law as a jury may understand it, or choose, from wantonness or ignorance of accidental mistake, to interpret it.”
Justice Story’s outlook has largely prevailed in American courts, and the standard formulation in most jurisdictions today is that though juries do indeed have a very real power to disregard (or “nullify”) a judge’s instructions in reaching a verdict, they are nevertheless duty-bound, morally, to follow those instructions, even though they cannot be punished for violating that duty.
The task of a trained judiciary, according to this view, is to interpret complicated laws correctly—something that ordinary citizens are sometimes unequipped to do. The judiciary’s role also goes beyond the mere enforcement of procedures. Instead, judges must interpret complex statutes in the light of case law, and an ordinary juror is sometimes no more able to perform such a task than to build a space telescope. Moreover, if lawyers were routinely permitted to argue law to the jury (instead of to the judge alone), they might easily trick gullible jurors into believing that the law was something quite different from what it really is. In classical Athens, by contrast, jurors were judges of both fact and law, and a common complaint against the Athenian system was that Athenian juries often decided cases contrary to law.
Now against this prevailing view, one might easily ask what a juror would be obligated to do if a judge gave instructions that were not merely imperfect or called for the enforcement of a bad law, but called for the enforcement of tyrannical laws or barbaric laws. If you like political philosophy, you might recall that, in the natural-law tradition as epitomized by John Locke, there are limits to what any government can impose on a citizen, and when human law contradicts natural law (however natural law is defined), our first obligation is to follow natural law. The Nazis’ laws were human laws, and often tyrannical, and in the United States, the fugitive slave law (for example) was enforced by juries until the beginning of the Civil War, and miscegenation laws were enforced by juries until the 1960s. Must a conscientious juror enforce such laws as these? Could a jury rightly “nullify” an instruction to apply such a law to a particular case?
Of course, tyrannical laws, or tyrannical instructions from a judge, are supposed to be overturned on appeal, and yet the typical juror has no guarantee that such an appeal will ever be heard—or that an atrocious result will actually be undone. In reality, in any legal system, the appellate courts sometimes fail in their duty. Is it possible, then, to embrace Justice Story’s version of a juror’s obligations, while at the same time admitting that there might be exceptional cases—cases where a juror has every right to refuse to follow a tyrannical instruction from the judge?
I believe it is possible, though I admit that the question is complex. One might still regard as morally binding the standard rule that now embodies Justice Story’s outlook: “the judge is the judge of the law, the jury is the judge of the facts.” Yet one might also believe that the rule could have exceptions. (In the United States, the most important opinion in this regard is Sparf and Hansen v. United States, 156 U.S. 51 , and though Sparf certainly does uphold the standard rule, it nowhere states that the rule holds without exception.) What counts as an exception would then have to rest with the conscience of the individual juror, since leaving that question to the judge would effectively give the judge the same power to impose tyrannical laws or instructions as before.
Also, a juror could still be obligated to answer truthfully when asked about his or her opinions during voir dire, and the juror could still be excused or excluded from jury service by the judge. Nevertheless, the juror would have a right to refuse to convict if the juror discovered, after being empaneled, that he or she had actually been roped into the equivalent of a judicial murder, or some equally monstrous project.
The judge’s proper authority over the jury is a fascinating question of legal and political philosophy, but the common term “jury nullification,” it seems to me, is employed rather too broadly today, because it covers two very different kinds of situations: (1) situations where a jury nullifies (or disregards) a judge’s instructions merely because the jury dislikes the law or the instructions, and (2) situations where a jury honestly believes that a conviction would amount to an act of tyranny, incompatible with civilized government. (By analogy, it might be remembered that, in Plato’s Apology, Socrates insists that the jury is duty-bound to follow the law, and in the Crito, he argues that he is obligated to follow the law even if he disagrees with it. Yet there are also legal proceedings in which Socrates flatly refuses to do the bidding of the authorities—specifically, during the trial of the generals from the battle of Arginusae in 406 B.C., and in the arrest of Leon of Salamis, both incidents being related in the Apology.)