Juror #112 had serious reservations about the case in front of him. The defendants were each charged with no less than 42 offenses. “Do we have the right to use jury nullification of a charge?” the juror asked.

The trial court’s answer was evasive, but the juror was insistent. “Can you answer the jury nullification with a yes or no response?” came the second note. After the third such inquiry, the circuit judge made the following declaration:

“Ladies and gentlemen of the jury you may not use, implement, or resort to jury nullification. It is improper, it’s contrary to the law [and] would be a violation of your oath…”

That declaration prompted a reversal by the Maryland Special Court of Appeals, the state’s intermediate appellate court. But in an opinion filed on Jan. 29, Maryland’s highest court—the Maryland Court of Appeals—upheld the circuit judge’s bald‐​faced assertion that jury nullification was “contrary to the law.”

Do jurors have the power to nullify charges – or, in the words of Chief Justice Marshall, “find a verdict of guilty or not guilty as their own consciences may direct?” The plain answer is yes. A jury’s verdict of “not guilty” is final. It may not be set aside even if it flatly contradicts the evidence, and jurors may not be punished for acquittal. The U.S. Supreme Court most recently acknowledged this in Greggs v. Georgia 428 U.S. 153 (1976), which noted that a holding where “jury nullification would not be permitted… would be totally alien to our notions of criminal justice. Moreover, it would be unconstitutional…. The suggestion that a jury’s verdict of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury‐​trial guarantee and the Double Jeopardy Clause of the Fifth Amendment.”

Nevertheless, ever since Sparf v. United States, 156 U.S. 51 (1895), courts have generally embraced the proposition that criminal defendants have no constitutional right to ensure that the jury is advised of its power to acquit against the evidence. But that doesn’t mean courts are permitted to misrepresent to juries that they may not engage in jury nullification, which, again, has been an unquestioned power of juries throughout centuries of common law. Apparently unable or unwilling to challenge that history, the Maryland Court of Appeals resorts to rank sophistry by asserting that “although a jury may have the ability to nullify, and we recognize that jury nullification occurs, a jury does not have the right to engage in jury nullification.” (Emphasis added.)

The high court’s attempt to strain a line between a jury’s ability to nullify and their right to do so may also be explained by the fact that the court itself had previously recognized a jury’s “ability” to nullify in Chambers v. State (Md. 1994) (“[Juries] always have the ability to nullify the application of the criminal law to a particular defendant”). But the even the Court of Appeals’ spurious distinction between a jury’s “right” and its “ability” to acquit against the evidence does not fairly meet the substance of the trial court’s actual instruction that the jury “may not use, implement, or resort to jury nullification.” That order is a blatant misrepresentation of what well‐​settled legal doctrine and historical practice empower criminal juries to do.

When our nation’s founders convened in Philadelphia to write our Constitution, they were well aware of the 1735 trial of John Peter Zenger, who was famously acquitted against the evidence for the crime of seditious libel against the Royal Governor of New York, William Cosby. Expressing what he and other Founders would no doubt have considered a truism, John Adams said that “it is not only [the juror’s] right, but his duty, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” Thus, the power of jury nullification—or stated more accurately, conscientious acquittal, since a jury’s verdict does not invalidate the underlying law—isn’t a bug in our nation’s criminal justice system. It’s a feature, designed to permit juries to act as a check against unjust charges, draconian punishments, and other abuses of government power.

The Maryland Court of Appeals’ endorsement of the novel (and false) proposition that juries may not acquit against the evidence—and its prospective instruction that state trial judges repeat that misrepresentation of the law to juries—represents a brazen usurpation of the jury’s power. No matter how much some judges may dislike jury nullification, letting them lie to juries to prevent the conscientious acquittal of a defendant is unconstitutional.

Commentary by James Craven. Originally published at Cato At Liberty. https://www.cato.org/blog/dont-let-judges-lie-juries-about-conscientious-acquittal

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