Criminal Courts have Quietly Moved From “May” Convict to “Must” Convict Jury Instructions Over the past 40 Years

In 1972, a three-judge panel of the U.S. Court of Appeals for the District of Columbia (known popularly as “the D.C. Circuit”) issued a sharply-split thirty-six-page decision in a case entitled United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).  The case involved the question of whether federal trial judges are under an obligation to inform jurors of their inherent right to acquit a criminal defendant even if the jury concludes that the government has proven beyond a reasonable doubt that the defendant violated a criminal statute.  There is no question that juries have this power of “jury nullification.”  The only question in Dougherty was whether, when or how jurors are to be informed of this prerogative.

The jury instructions given by trial judges have discernibly changed regarding this issue over the course of American history.  In the eighteenth and early nineteenth centuries, it was common for judges to either fully inform juries of their law-vetoing authority or to provide very few instructions of any kind and let juries do as they will, which invited jurors to resolve all questions of both law and fact.  But today most criminal trial judges falsely tell juries that they may only judge the facts and must follow the judges’ interpretations of the law.  For example, if a modern judge determines that a law is constitutional (and almost all modern judges rule that almost all laws are constitutional) the judge will instruct jurors that they may not second-guess his interpretation.  Some jury instructions even suggest to jurors—utterly falsely—that jurors will be breaking the law or may be subject to punishment if they dare to disagree with the judge regarding the law.

Jury instruction practices have varied greatly over time and between jurisdictions, so it is often difficult to make general statements about them.  But as mark of original intent behind the Constitution’s jury-trial provisions, we can look to the jury instructions given by the Chief Justice of the United States in the only jury trial ever recorded with any detail in the chambers of the U.S. Supreme Court.  In Georgia v. Brailsford (1794), Chief Justice John Jay (himself a Framer of the Constitution and coauthor of The Federalist Papers) gave the following instructions to the jury:  “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy.”

These are the only jury instructions regarding juror prerogatives ever recorded as having been delivered by the U.S. Supreme Court.  Of course the Supreme Court is mostly an appellate court with an extremely limited “original” or trial jurisdiction—arising only when suits between states or nations are filed directly in the Court.  It appears that there may have been three jury trials in Supreme Court history (all during the 1790s) and the records are quite paltry regarding two of them.

The Dougherty case began in 1969 when nine pacifist Catholic priests and nuns broke into the D.C. offices of Dow Chemical Corporation to protest the company’s production of Napalm for the Vietnam War.   The “D.C. Nine,” as they came to be known, sang hymns as they poured blood onto various office files.  There were similar antiwar protests being staged elsewhere during the period, including the cases of “the “Catonsville Nine” (who burned draft board files), the “Baltimore Four” (ditto), the “Harrisburg Seven” (tried for mentioning the possible kidnapping of Henry Kissinger in intercepted letters), the “Milwaukee 14” (tried for burning draft records), and the “Harrisburg Seven” (tried for planning to arrest Henry Kissinger for waging an illegal war, after merely meeting to discuss the idea).  These acts of protest, trespassing and civil disobedience (and outright property destruction in some cases) were in vogue among the ardent antiwar left of the time.  (Many of these protests grew from the activism of a single Catholic Priest, the indefatigable Father Philip Berrigan.)

At the time, jury nullification was a keystone in the advocacy of American war protesters.  The great leftist lawyer William Kunstler, director of the ACLU from 1964 to 1972 and a member of the national board of the ACLU for almost thirty years, made an industry out of jury-nullification arguments and authored several articles, including this brilliant law review article, on the topic.  (Note that after Kunstler’s passing, the ACLU has abandoned its support for jury nullification, except where First Amendment issues develop from the persecution of jury-rights activists at courthouses.)

In the Dougherty trial, the D.C. Nine tried to get the judge to inform the jury of their inherent nullification powers.  The trial judge refused, the jury convicted, and the Defendants appealed to the D.C. Circuit.  On the question of whether a judge is under an obligation to fully inform juries about jury nullification, the three judges of the D.C. Circuit split sharply.  Chief Judge Bazelon, one of the highest ranking judges in the federal system, issued a brilliant dissenting opinion explaining why the refusal of the trial judge to fully inform the jury constituted outright deception.  “On remand the trial judge should grant defendants’ request for a nullification instruction,” wrote Bazelon, or “[a]t the very least “permit defendants to argue the question before the jury.”


Unfortunately, however, Judge Bazelon was outnumbered by Judges Leventhal and Adams, who held that trial judges are under no obligation to inform jurors of their “unreviewable and unreversible power . . . to acquit.”  The two-judge majority decided that juries did not need to be explicitly informed because the power of jury nullification is implicit in the overall tone of commonly-given jury instructions.

According to Judge Leventhal (with emphasis added):

The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. . . .  Even indicators that would on their face seem too weak to notice — like the fact that the judge tells the jury it must acquit (in case of reasonable doubt) but never tells the jury in so many words that it must convict — are a meaningful part of the jury’s total input. Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.

The problem with Judge leventhal’s 1972 statement is that it is no longer true.  During the 1970s, when Dougherty was decided, the common practice was for judges to use the word “must” only when instructing jurors to acquit when prosecutors fail to establish proof beyond a reasonable doubt.  In contrast, the word “should” was used when instructing jurors about their obligations when prosecutors prove their cases.  But today, many courts have switched to using “must” in both commands.

Thus, a central tenet supporting the opinion of the Dougherty majority—perhaps the lynchpin of the decision—is no longer accurate.  I have sat in courtrooms where judges not only tell juries they “must” convict, but where the judges emphasize the word “must” as they say the word.  In my experience, judges seem especially prone to emphasize “must” in firearm prosecutions, perhaps out of fear that jurors might flirt with considering the Second Amendment as a basis for jury nullification.

The Dougherty ruling—built upon a carefully-analyzed split decision—has been something of the law of the land for forty years.  The decision has been referenced more than 300 times by subsequent judicial opinions.  As federal case law has developed, the Dougherty rule that judges need never inform jurors of their power to veto laws (or the application of laws to specific situations) has become the rule in all thirteen federal circuits.  The Supreme Court has declined to directly address the issue in many years.

But as already discussed, common trial practices now stray markedly from the practices upon which the Dougherty rule was based.  Again, these practices are without sanction in constitutional history, Framers’ intent, or Supreme Court precedent.

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