ON THE DEFENSIVE: Attorneys should have freedom to discuss jury nullification

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Every day, in criminal trials throughout the state, juries are instructed as follows: “If you are satisfied beyond a reasonable doubt that the [elements of the crime] have been proved, you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty.”

All pattern criminal jury instructions in Wisconsin read this way. But given the plain language and ordinary meaning of these words, why is there any limit on a defense attorney seeking jury nullification by emphasizing the words used by the judge?

Jury nullification, as it is known, is rarely discussed in most criminal jury trials, although it may be the last line of defense in seemingly hopeless cases. And while the jury’s power to nullify may be axiomatic, few judges let defense attorneys inform jurors of this authority.

In essence, the power of jury nullification is derived from the fact that acquittals cannot be appealed.

And the reluctance of instructing jurors on their power to judge the law did not always exist.

In Georgia v. Brailsford, a rare case in which a jury trial was conducted in front of the U.S. Supreme Court in 1794, Justice John Jay instructed the jurors that “you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

Despite this language, few judges today would grant a defense attorney’s proposed jury instruction advising jurors that they can judge the law.

Yet every single pattern criminal jury instruction advises jurors that they are not required to convict the defendant, even if the state has proven its case beyond a reasonable doubt. What would be the harm in taking the instructions one step further and advising the jury that its decision to acquit cannot be appealed, meaning that if they disagree with a particular prosecution, for any reason, they are free to acquit.

The main concern, jury lawlessness, probably would not materialize. There are few prosecutions that jurors are so troubled by that they would choose to acquit a guilty defendant. But if it did happen, would society not benefit from this message being plainly delivered to the district attorney’s office?

Another concern is that a jury may act out of prejudice and convict someone despite the prosecution’s failure to prove its case. But that concern is ameliorated by the fact that defendants can appeal convictions and that judges should grant directed verdicts in cases in which the prosecution has failed to meet its burden.

Jury nullification is regarded in many circles as a dirty concept. But the power of the jury to judge the law is longstanding.

If judges will not advise jurors of this power, they should, at a minimum, impose no restriction on a lawyer who argues directly from the jury instruction.