March 2, 1998
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Ann Marie Deer Owens, (615) 322-2706
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Vanderbilt legal study finds no constitutional protection for nullification advocacy
NASHVILLE, Tenn. - Jurors do not have a constitutional right to vote their conscience and acquit a defendant guilty under the law as described by the judge, and judges can go to surprising lengths to ensure that jurors follow their instructions, according to Vanderbilt University Law Professor Nancy J. King.
In a new article in the University of Chicago Law Review, King described the efforts of a nonprofit group called the Fully Informed Jury Association (FIJA) to draw attention to jury nullification through distributing handbills at courthouses. She also examined the legality of two judicial responses to these efforts to promote jury nullification: disqualification of jurors who admit that they would ignore the letter of the law and vote their consciences, and restrictions on nullification advocacy in and around courthouses.
She said that there is no consensus about the extent to which the Constitution protects jury nullification, or in which constitutional provisions that protection may be found. An explanation of jury nullification that does not give it independent constitutional status, but instead treats it as a "byproduct" of other constitutional protections, she said, provides a basis for determining which controls on nullification are acceptable. The defendant's right under the Sixth Amendment to a jury's independent assessment of the facts, for example, prevents judges from preempting a jury's factual findings with a directed verdict of conviction.
Similarly, the reason judges cannot overturn acquittals is not because jurors have a right to disobey the law, she said, but because identifying and correcting their disobedience would unduly threaten the defendant's interest in independent jury fact-finding and in the finality of acquittals guaranteed by the double jeopardy clause.
After reviewing cases during the past two hundred years, King has concluded "purging nullifiers from juries is an American tradition."
Those opposed to the death penalty were excluded from capital cases throughout American history, she said. Klan members were excluded from service as jurors in civil rights trials in the South after the Civil War. In addition, those who believed in polygamy were disqualified from serving as jurors during the federal crusade against bigamy in Utah in the late 1800s.
King warned that prohibiting judges from excluding nullifiers from juries, even after trials have started, would raise serious problems. "The various theories that could regulate the challenge of potential nullifiers could not be confined easily to the jury selection phase of a criminal prosecution," she said. "Other nullification controls, including well-accepted rules of evidence, or even retrials after jury deadlocks, may become difficult to justify once one decides the Constitution prevents courts from barring legal dissenters from juries."
King also explained why the First Amendment allows judges to forbid nullification advocates from directing their propaganda to potential jurors. She described cases in which advocates have been prosecuted for these activities. "The question is not whether the
particular message is accurate, or even lawful, but whether it poses a sufficiently high risk of actually influencing juror behavior," King said. "In short, those who wish to influence jury deliberations and verdicts through the advocacy of jury nullification may be kept at a distance, even excluded, from the trial process itself."
King's research, titled "Silencing Nullification Advocacy Inside the Juryroom and Outside the Courtroom" is scheduled to be published this spring by the University of Chicago Law Review.
For more news about Vanderbilt, visit the News and Public Affairs home page on the Internet at www.vanderbilt.edu/News/
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