#17098 - Juries Right To Jury, Selection, Nullification, Instructions - Criminal Law

The Role of the Jury

Theme: Juries are powerful checks on gov in theory, limited in practice

• In theory, jury has absolute power to acquit and nullify, but in practice, limited

  • (1) jury selection (esp practices of striking unhelpful jurors and explicit/implicit racial bias)

  • (2) jury instructions

    • Not told potential sentences

    • Not told power of JN

• Right to jury trial is fundamental and guaranteed in the states by 14th DP clause if offense carries punishment exceeding 6 months imprisonment (incorporated from 6th A)

  • Incorporated by Duncan - crime punished up to 2 years, he has right to jury trial

    • Duncan doctrine: right to jury (6th) is fundamental and is incorporated by the 14th Amendment, you are entitled to this right if the offense is punishable by at least six months

    • Fundamental because it checks against government oppression (historical basis), give juries discretion

    • Studies show that most of the time juries and judges would agree on the outcome; if they differ, juries come out in favor of leniency

  • Federal court: right to jury trial comes from 6th amendment

  • Policy

    • Juries check government's arbitrary/oppressive decisions

    • Long history and commitment to juries

    • Jurors have variety of experiences (12 vs. 1), no legal training, no affliation with the government, not elected (versus elected judges)

    • Provides great civics education

    • Juries discretion is exercised positively - equity dispensing, rule for leniency

  • Problems

    • juries are ignorant, not follow instructions, no legal training

    • Note: juries and judges usually agree; juries disagree in favor of leniency/acquittal

• Jury selection/ Representative jury

  • Must reflect "fair cross section of community" (no requirement of "jury of peers")

  • Preemptory challenges allow removal of jurors but cannot be based on race or gender

    • However, easy to get away with race/gender based challenge because can (1) offer an race-neutral explanation whereas (2) other side needs to show discriminatory intent, which is difficult

• Jury Nullification instruction cannot be given

  • Jury Nullification - verdict based on something other than the legal requirements (sympathy for defendant, laws are unfair etc.)

  • Juries have the absolute power to acquit and nullify a law BUT courts are not allowed to give a jury nullification instruction

  • Dougherty - JN instruction sought by D correctly denied by the lower court, no JN instruction because

    • (1) fear anarchy - - juries would use it too often, want to reserve it for the exceptional case. and

    • (2) assume juror knowledge of JN power

      • (problematic? Dissenting opinion questions this assumption)

      • Assumes that juries already know of their ability to nullify Thus JN awareness is left up to private actors (ex. Butler's proposal/organizations spreading awareness about JN)

  • Policy considerations for jury...