Jury Nullification - Any US States where it is legally permitted?

[mhendo]

Thanks for the extra research, folks.

I guess i hoist myself on my own petard by asking for a “citation showing that any state does, in fact, instruct its juries in this way.” It is clear that some states, including the one where i live, make provisions in their Constitutions for the jury to decide the Law, and not just the facts. Still, Crafter_Man made a blanket assertion about a jury’s rights to determine the law, yet only a handful of states even make such a suggestion.

Also, as far as i can tell, Maryland Law does not specifically require judges to intruct juries about their right to nullification. Under Title 4, Criminal Causes of Maryland Rules (hope that link works), it says:

Rule 4-325. Instructions to the jury.

(a) When given.- The court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate. In its discretion the court may also give opening and interim instructions.

(b) Written requests.- The parties may file written requests for instructions at or before the close of the evidence and shall do so at any time fixed by the court.

© How given.- The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

(d) Reference to evidence.- In instructing the jury, the court may refer to or summarize the evidence in order to present clearly the issues to be decided. In that event, the court shall instruct the jury that it is the sole judge of the facts, the weight of the evidence, and the credibility of the witnesses.

(e) Objection.- No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.

(f) Argument.- Nothing in this Rule precludes any party from arguing that the law applicable to the case is different from the law described in the instructions of the court stated not to be binding.

Gfactor, i looked up the article from which your first quotation was taken (it’s available via JSTOR, for those who have access to academic databases).

It does indeed give your quotation as the standard instruction given to juries in criminal trials in Maryland. The article also points out, however, that such instructions are also sometimes accompanied by other admonishments, and that the jury’s deliberations are affected by other rules of law and procedure. While these additional factors do not overturn the argument that Maryland juries have the right to nullify, they do suggest that in practice the issue is less absolute than some would claim.

Here’s some relevant bits:

How does the Maryland jury instruction work in practice? Some of the answers to questions about the jury’s role in Maryland are like those in Indiana. Jurors do not, for instance, have the right to declare a statute unconstitutional, and lawyers are not permitted to argue that a statute is unconstitutional.

To protect the accused from a jury that might act improperly, a number of safeguards have been built into the trial process. The trial judge decides all questions concerning the admissibility of evidence. If either party requests the judge to do so, he or she must give the jury an advisory instruction on the law. If the trial judge thinks insufficient evidence exists to support a jury verdict of guilty, he or she is empowered to issue a directed verdict of acquittal. If the jury has misapplied the law to the prejudice of the accused, the trial judge can order a new trial. Similarly, the Maryland Supreme Court can review the sufficiency of the evidence if the defendant argues on appeal that the jury has convicted improperly. The defendant, therefore, has the benefit of a jury determination on the applicability of the lam, but is protected from a jury that might use its power to the defendant’s detriment.

The attorney is allowed to argue the law to the jury and can present any disagreement about the applicable law to the jurors for their resolution. The judge may, however, “dissent” from counsel’s interpretation, and present his or her views in the form of an “advisory” instruction.

pp. 83-84

Also, from a footnote in the same section:

Jurors are sometimes cautioned against relying on their own prejudices, and can be instructed not to “apply the law as you think it ought to be or what it should be, but what, in fact, it is in this case.”

p. 83

Finally, in case you consider it relevant, the authors of this scholarly article, Alan Scheflin and Jon Van Dyke, are supporters of the principle of jury nullification, and in their conclusion call it:

a distinct and unique benefit to our system of government that not only brings the community and the law closer together, but also adds a new dimension to the concept of democratic self-rule for all participating in the jury experience. Therefore, it is not merely a practice that should be tolerated, but it is a practice that should be applauded and treated with dignity and honesty. Even in those rare instances when juries reach verdicts that do not win public support, the community is learning vital lessons about itself. And, of course, whenever the jury returns a verdict with which the community morally agrees, even though it may run counter to the instructions of the judge on the law, faith in the jury system is openly vindicated.

• Note to mods: I’ve quoted just over a page, in total, from a 65-page article. I believe that this falls well within the realm of Fair Use.

[Gfactor]

The author of the three pervasive myths article cites Blackwell v. Maryland, 278 Md. 466, 478-79, 365 A.2d 545, 552-53 (Md. 1976) for the proposition that Maryland juries should not be told about their right to nullify. Can you get a look at the case?

[Gfactor]

@mhendo

It does indeed give your quotation as the standard instruction given to juries in criminal trials in Maryland.

Does it have a citation to a case or a pattern jury instruction?

I found a reference to this article at http://www.hoboes.com/pub/Politics/Jury%20Duty/Jury%20Nullification%20Sources:

Jacobsohn, Gary J., “The Right to Disagree: Judges, Juries, and
the Administration of Criminal Justice in Maryland”,
Washington University Law Quarterly, Vol.1976, 571-607.
Discussion of current practice with regard to instruction on
nullification required by the Maryland constitution.

But note the date. The article was probably writen before the Blackwell case.

[mhendo]

@Gfactor

The author of the three pervasive myths article cites Blackwell v. Maryland, 278 Md. 466, 478-79, 365 A.2d 545, 552-53 (Md. 1976) for the proposition that Maryland juries should not be told about their right to nullify. Can you get a look at the case?

I did find this case, but i don’t have the time now to go through the verdict and pul out all the relevant material. Also i’m not a legal scholar so it couldbe that my analyss woldbe faulty anyway.

I’m in themiddle of grading student papers rightnow. Once they’re done, i’ll come back and see if i can address the issue. In the meantime, maybe someone with more experience than me at reading ocurt decisions might be able to weigh in.

Before i come back, i’ll also check the reference for the answer to your second question.

[Gfactor]

Got a look at Blackwell. .

On the one hand, it limits nullification and nullification arguments.

In Blackwell, the defendant was convicted of a capital offense. His counsel’s argument was interpreted as advocating nullification:

He began his statement by impressing upon the jury the significance of its task of judging the law. He noted that this was the first Maryland jury in modern times with power to trigger the imposition of a mandatory death sentence, and he undertook to give a history of capital punishment. The prosecutor’s objection came after Blackwell’s counsel made the following remarks:

"And it came about that many juries did not see fit to convict a person who was accused of murder, not because they found as a matter of fact that those persons were innocent of the crimes for which they were accused, but because they felt . . . under the circumstances [where] . . . the death penalty was the only one result, that it was wrong and so they acquitted numerous defendants who were charged and who were guilty."

Both the judge and the prosecutor understood this statement as encouragement to the jury to disregard the law. We agree with that assessment.

The court noted:

In Thomas v. State, 29 Md. App. 45, 349 A. 2d 384 (1975), the defendant candidly admitted that his purpose in wishing to inform the jury of the mandatory [***25] sentence for use of a handgun in the perpetration of a felony was to seek a jury nullification of the sentencing provision. Disapproving of that view of the jury function, the court quoted [**553] from Hamilton and Fletcher v. State, 12 Md. App. 91, 98, 277 A. 2d 460, 464 (1971), aff’d 265 Md. 256, 288 A. 2d 885, cert. denied, 409 U.S. 1006, 93 S. Ct. 445, 34 L.Ed.2d 298 (1972):

"'[Article XV, Section 5 of the Maryland Constitution] contemplates that it is within the proper province of the jury to resolve conflicting interpretations of the law and to decide whether the law should be applied in dubious factual situations. Schanker v. State, 208 Md. 15. It does not confer upon them, however, untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.'" 29 Md. App. at 52, 349 A. 2d at 389.

We expressly approved these principles in our affirmance of Hamilton.

But it seems to approve nullification instructions.

During summation, the prosecutor’s argument included this:

Ladies and gentlemen of the jury, I don’t know any of you, but when you raise your right hand and take an oath I hope that it means something, that it must mean something. I’m going to ask you to remember your oath as jurors to decide the case solely on the facts of the case. . . . All I’m asking you to do is to retire to the jury room with one single steadfast solitary purpose and that is to weigh the evidence. And if the Defendant committed a deliberate arson in which 6 people died, then you have no choice under all that is right and all that is just but to return a verdict of guilty.

The defendant argued that "these remarks prejudicially misstated the jurors’ oath, which was to ‘well and truly try the case according to the law and the evidence.’

And the court found that:

Even if the prosecutor’s remarks were improper, the possibility of prejudice was cured by the court’s instruction. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L.Ed.2d 431 (1974); Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974). Several times in its jury instructions, the court informed the jurors that they were the final judges of both the law and the facts, and we think, in the circumstances, that this corrected any possible misapprehension derived from the prosecutor’s remarks.

So the court (sort of) approved of some nullification instructions.

OTOH, the court also ruled:

Maryland Rule 756 b requires the trial judge, at the request of any party, to give advisory instructions to the jury “as may correctly state the applicable law.” It is, of course, clear that murder committed in the perpetration of arson is first degree murder. Code, Art. 27, § 408. Consequently, Blackwell was not entitled to an instruction that it was the prerogative of the jury, as judges of law, to find that murder committed in the perpetration of arson was murder in the second degree. Nor was he entitled to an instruction that the jury could properly find that the murders were not committed in the perpetration of an arson. All of the evidence in the case, adduced both by the State and Blackwell, showed that the murders were committed in the course of burning a dwelling house and constituted first degree murder.

That said. Nevermind the case. I found this article : Dorfman, David & Iijima, Chris Fictions, Fault, And Forgiveness: Jury Nullification In A New Context, 28 U. Mich. J.L. Reform 861 (1995), which says:

Two states, Maryland and Indiana, currently permit nullification instructions. These states have been viewed as laboratories, allowing scholars to study the actual effect of nullification instructions on the outcome of real cases. However, given a number of factors, most importantly the wording of the nullification instruction, such studies are not particularly instructive in understanding the actual effects of an instruction on a deliberating jury. Notwithstanding the nullification language in the charges, we are not convinced that Maryland and Indiana juries have been provided with the clear opportunity to nullify which comes from a real understanding of the power to nullify.

The authors quote the same instruction, and attribute it to Wyley v. Warden, Maryland Penitentiary, 372 F.2d 742, 743 n.1 (4th Cir.), cert. denied, 389 U.S. 863 (1967).

So it looks like Maryland and Indiana permitted nullification instructions as of 1995. And as **mhendo ** has pointed out, the issue is less clear than some claim.

[Northern_Piper]

That pesky real life thing kept me from checking back on this thread until now.

Thanks for the responses, everyone, especially gfactor and mhendo. That gives me more than enough for my discussion of this issue.