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those who are legally guilty but morallyupright.The criminaljury's power to delivera verdictcounterto bothlaw andevidenceresides in the fact thata general verdictof guiltyor not guiltyrequiresno otherrevelationas to the decision by the jurors. Indeed, this state of affairshas existed since the Bushell case in England in 1670.Thejury's rightto decide a criminalcase by its own lights, withoutfear of outside coercion and pressures,has been a hallmarkof Anglo-Americanjuris-

prudence.

Those who favor the nullificationpower of thejury define that power as the jury's rightto returnan acquittalwhen strictinterpretationof the law would result in an injusticeandviolatethe moralconscience of the community(Scheflin, 1988). Proponents view the power as one-sided and limited to acquittals in criminal cases. A judge can set aside ajury verdictof guilty, but not an acquittal.In civil cases, the judge has the power to set aside or prevent a verdict for plaintiffor defendanton the groundsthat it has no legal basis. The opponents of the nullification power have pilloried the doctrine as historically unsound, functionally unwise, and legally and historicallyuntenable.Simson (1976)takes the position that the differencebetween vengeance and mercy is an unprincipleddistinction.

It is certainlyclear thatjuries have this power to nullify the law. A jury's decision to acquit is not vulnerableto reprisal. The issue is, should juries be informedof this power?Thatis, shouldthe courtbe allowedto makeexplicit this nullificationpower?Specifically,the debateconcernsthe wisdomof informingthe trialjury that they can acquiton the basis of conscience (Scheflin, 1988).At the heart of this issue are the consequences of candor. If juries are informedof the implicitnullificationpower, as proponentsbelieve they should be, what will en-

sue? Will we have anarchyand "runaway"juries?

The opponents of the jury's exercise of the nullificationpower suggest that should not be trusted to render verdicts as the "conscience of the

community"because thatis not the functionof thejury. The role of thejury is to fully and fairlyfollow the law and the evidence. The outcome of a fully explicit nullificationdoctrinewould be unpredictableand harmful(Simson, 1976).

A separatebut relatedissue concernsthejury's competence to resolve legal issues. Concernaboutthejury's competencemay, of course, affect one's position on the nullificationdoctrine. The nullificationissue deals with the permissible scope or the boundariesof the jury's deliberations,while the concern about the jury's competence, particularly in complex litigation, reflects doubts about whetherjuries shouldbe allowedto deal with these cases in any event (Scheflin,

1988).

The issues are not new. They echo concerns about the jury voiced over the past 200 years. Americanlaw has always exhibiteda distrustof thejudge andhas given the jury wide powers to decide criminalcases. The law, however, has distrustedthejury as muchas thejudge. Rules of evidence and procedureshave been employed as countervailingforces to circumscribethe power of the jury

(Friedman,1985).

Over the centuries, the Americanpublic has exhibited a bipolarityin their level of trustinjuries to makesubstantivedecisions. The rise andfall of the level of trust may reflect competinggoals: one, a rationalsystem of laws, based on

generalprinciples;the other, an intuitivelyfair system of equity, based on em- pathic individualizedapplicationof those principles. Contentionbetween these not wholly compatible, yet eminently desirable, aspirationsmay capsulize the largerstory of the Americanexperiencewith the jury.

A BRIEFHISTORYOF JURY POWERAND THE

NULLIFICATIONDOCTRINE

The power of the jury in criminaltrials in the first decades after the constitutionalconvention appearsto have been untrammeled.Rules of evidence were

eitherloose or nonexistent,andthe controlof thejudge over courtroomprocedure was apparentlylimitedto preventingmayhem(Howe, 1939).Thejury was given such powers because very little distinguishedthe lay jurors from the equally lay

judge (Provine, 1986).

In any event, it seems clear that in the period soon after the constitutional convention,juries had the rightto determineboth law and facts (Howe, 1939).

Impressivelegalprecedentsspelledout thejury's power. In Georgiav. Brailsford (1795),UnitedStates SupremeCourtChiefJusticeJay, sittingas a trialjudge, told the jury that, while the court was deemed to be the best adjudicatorof the law, both the facts andthe law were in the provinceof thejury. The case was civil, but the principleappliedto the criminaljury as well (Simson, 1976).The ChiefJustice did not, however, specify the parametersof the jury's nullificationpower. Nullificationwas understoodto be a mechanism,typicallyactivatedby defense council in criminalcases, by whichjuries as the representativesof the communityare interposedagainstharshand unjustlaws and urgedto acquit (Horowitz, 1985).1

As Howe suggests, it is easy to understandthat smallagriculturalcommunities, whose citizens were untutoredin the law andhistoricallyhostile to the legal

profession (Friedman,1985),would gladlyleave the judgmentof their neighbors in the handsof ajury. Earlycourtroomproceduresoperatedprimarilyto curbthe power of the judges. Judgeswere severely limitedas to their discretionin com- mentinguponthe evidence. Evidentiaryrulesfurtherlimitedjudicialfreedomand power(Friedman,1985).The zeal for thejury as interpretersof both law andfacts emanatedin the colonial experience and peaked duringthe age of Jackson.

Duringthe Jacksonianperiod, which was the apotheosis of general respect for the common man and the height of popularenthusiasmfor the jury, Justice

a new view of jury power. In UnitedStates v. Battiste (1835), Story promulgated

he concededthe "physicalpowerto disregardthe law as laiddown to themby the court" (p. 1043),but he did not thinkthe jury shouldfollow its whims and inter- pretthe law on its own. Story's concernin this instancewas to be sure thatjuries

Jurynullificationhas alwaysbeen thoughtto move in the directionof leniency. The passageby the BritishParliamentof Fox's LibelAct in 1798fueledthe nullificationissue with languagethat states that "thejury . . . may give a generalverdictof guilty or not guiltyupon the whole matterput in issue" (citedin Howe, 1939).The constructionof the languageof the Act madeit clearthat ajury's discretionextendedin only one direction-towards mercy.

would not punisha defendantdeservinga mercifuljudgment.He did not want the jury to be able to move towardvengeance. The modernproponentsof the jury's power to nullify find themselves in accord with Justice Story (Scheflin & Van Dyke, 1980). They would limit nullificationto the ability of a jury to render a merciful verdict. Then and now, a judicial ruling that the law does not apply cannot be reversedby a jury.

Priorto the middleof the 19thcentury,however,juries didwhat they wished. Juriesconvictedcommonthieves to the hangman'snoose while otherjurieswould engage in what Friedman(1985)felicitously labeled "pious perjury." Friedman cites an 1815South Carolinacase in which a defendantwas found guilty of petty larceny ratherthan grandlarceny. This distinctioninvolved more than legal semantics, as the latter charge carriedwith it the death penalty. Anything stolen over the nominal 10 pence was grandlarceny. The jury decided, despite ample evidence to the contrary,that the take from the crime did not exceed 10 pence. The verdict was upheld by an appeals court. Friedmannotes that the jury's independenceallowedfor a kindof incrementalpenalreformwhich eventuallyled to a change in the perceptionof criminalsand reformof the penal system.

However, fears of majoritariantyranny, as well as an increase in judicial

power, soon began to alter the judge-jury relationship(Bodenhamer,1982). By the middle of the 19th centuryjudges began to challenge the notion of juries

alism of jurists (Friedman,1985), as well as a reaction to the muzzling of trial judges at the turnof the 19thcentury.Whilethejustices of the SupremeCourthad begun to establish a new, less adventuresomerole for the jury in criminaltrials, the state courts startedtheir reformulationssomewhatearlier in the late 1820s.

Bodenhamer(1982)notes that in Indianathe relationshipbetweenjudge andjury was not directly scrutinizeduntil 1828. The state supreme court in that year uphelda trialcourt rulingin a criminalcase that held that questions of law were the provinceof the court and not thejury. This ruling,as well as a similarone in

Massachusetts,met legislativeresistance,illustratingthe conflictandthe passions generated by the reality and symbolism of jury power. A new constitution in Indiana, approvedwithout controversy in 1851, requiredjury determinationof both fact and law (Bodenhamer,1982).In 1855, a statute was passed in Massachusetts giving the jury the same power Indianavoters had given their citizens (Note, 1964).

The tension between the still prevailingpopularnotion of the jury as exemplifiedby the events in Indianaand Massachusettsand the increasingdistrustof thejury as reflectedin state appellatecourtdecisions in the middleof the century was inevitableandperhapsunremarkableThe. simplefrontiersocieties hadbegun

to give way to more complex urbanenvironments.That early sense of commu- nity, and an attendanttrust of the men comprisingthe jury, was eroded. It has been suggested that the moralconsensus no longer was clearly defined and because this earlierconsensus was now diffused,thejury could no longerbe trusted with unlimitedpower over criminallaw (Bodenhamer,1982).

A cascading numberof state cases limited the jury's power. In Commonwealth v. Porter, an 1845Massachusettscase, ChiefJustice Lemuel Shaw of the

state's Supreme Court vigorously rejected the jury's presumed nullification power. Shaw arguedthat allowingthe jury to decide the law violated the defendant's right to a trial, under law, before an impartialjudge (Note, 1964). The Porterdecisionled directlyto the 1855statuteexplicitlygivingjuries the power to do what the court said they could not do. The proponentsof that statutefelt that thejury could better reflect the community'ssense of justice than could a single judge. Opponentswere less sanguine.The debates suggest a concern about the juries' susceptibilitiesto popularopinions,andfearswere raisedfor the unpopular defendant(Note, 1964).

Trialsarisingout of the 1850FugitiveSlave Act led to a definitiveexercise of jury independence.Nullificationbecame a direct issue in these cases, explicitly statedby the defense, as it wouldagain120yearslaterduringthe Vietnamperiod. In UnitedStates v. Morris(1851),counsel for the defendantarguedin his address to thejury that, as this was a criminalcase, thejurorswerejudges of law as well as fact. Counsel then indicatedto the jury that "if any of them conscientiously believed the ... 'FugitiveSlave Act' to be unconstitutionalthey were boundby theiroaths to disregardany directionto the contrarywhich the court mightgive them" (p. 1331).The trialjudge then refusedto permitthe argumentto continue in this direction.

Morriswas convicted and his case appealedto the United States Supreme Court. Justice Curtis delivered the Court's opinion that the court is the sole determinerof the law. In supportof this opinion, Justice Curtis-rejecting Georgia v. Brailsfordas an anomaly,perhapsthe result of faulty reporting-found no evidence to the contraryin any decision priorto the ratificationof the Constitution. He concludedin Morristhat "thejury have the power to go contraryto the law as decided by the court; but that power is not the right, is plain, when we considerthatthey also have the like power to go contraryto the evidence, which they are sworn not to do" (p. 1335).

THE CIVILJURY

The trendswe have outlinedwith respect to thejury in the criminaltrial do not in all respects echo the history of the civil jury in America. The primary differencewas that thejudiciaryattemptedto curb the nullificationpower of the civil jury from the very startof the constitutionalperiod.

The civiljury was neitherpartof the MagnaCartanor a persistentconcernof the constitutionsof the colonies (Rutland, 1955). It was, therefore, not as en-

may argue that the primarypurpose of the jury is to give the stamp of popular legitimacyto outcomes of criminalcases. Solicitudefor the civiljury historically resided in the self-interesteddesire of variousinterestsfor protectionfrom foreclosures and other loss of propertyor liberty as a result of failureto pay debts. Unlike the early juries in criminaltrials, civil juries did not have unrestrained power. Britishjudges effectively controlledjuries by removingcertaincases from

170 HOROWITZAND WILLGING

them, reviewingtheirdecisions, or by guidingtheirdecisions (Kirst, 1982).Juries were excludedfromequityandadmiraltycases (Devlin, 1980).Indeed, one of the burrsunderthe antifederalistsaddlewas the lack of ajury in such cases. Afterall,

colonialjuries nullifiedthe enforcementof unpopularBritish trade laws by acquittingsmugglersand punishedthe British naval officers by imposing civil lia- bility. The British evaded this nullificationtactic by the simple expediency of bringingsuch cases in admiraltycourts. Despite this history, the Seventh Amendment, as enacted, permittedthe continuationof this evasive practiceby guaran- teeing civil trialby jury only in "Suits at commonlaw."

The currentdebate, whichprimarilyconcernsthe use and competence of the civiljury in complex cases, is, in fact, not novel. As Friedman(1985)has chronicled, an explosive growthof tort law took place after 1850. The obvious cause was the massive industrialrevolution,in particular,the sinews of thatrevolution, the railroad.It was thoughtthat not only would these new cases involving machinery be too complex for the layman but that, whatever the evidence, juries

would sympathizewith the mangledplaintiffsagainstthe giantcorporations.Cor- porationsfelt thatjuries wereresolutelyin favorof the plaintiffsandwould stretch the law to that end (Friedman,1985).

We can see that the issues that would galvanize the 20th century debate concerningthe role of thejuryin both criminalandcivil litigationhadbeen framed by the 19thcentury courts.

CRIMINALLAWNULLIFICATIONINTOTHE

TWENTIIETHCENTURY

Returningto considerationof the jury in criminalcases, we find that the United States SupremeCourtin Sparf and Hansen v. United States (1895)pro- scribedmuchof thejury's explicitpower andauthorityby holdingthat thejury's obligationwas to follow the law as receivedfromthe court and to apply that law to the facts. The Courtrecognizedandindeedexpresslyallowedfor the possibility

that Congress might wish to propose legislation on this issue (Simson, 1976). Nevertheless, as a matterof constitutionalor commonlaw, thejury had no right to deviate from the law and decide a case on its own notions (Scheflin, 1988).

Sparfand Hanseninvolvedtwo sailorsaccused of murder.The defense, in an effortto obtaina compromiseverdict, arguedthatthejury oughtto be allowed to consider the lesser charge of manslaughter.The trialjudge refused the defense plea to permitjurors to be told they have the power to returnany verdict (man- slaughter)they wished. When the jury interruptedits deliberationsto ask the judge if they could entertainthe lesser charge, the judge said they could not for there was not any evidence to sustain a charge of manslaughter.The Court, utilizingthe past opinionsof Justices Story and Curtis, reasoned that if the jury cannotbe permittedto increasethe penaltythey cannotbe allowed to reduce the penalty either.

Justice Harlan'smajorityopinion was hotly disputedby Justices Gray and

Shiras, in dissent. The lengthy and impassionedmajorityand minorityopinions attest to the bipolar views of the jury held throughoutAmerican history. This decision limitedthe explicit power of the jury.

The periodin which SparfandHansen was decidedwas filledwith social and politicalunrest.Kammen(1986)has chronicledthe upsurgeof patrioticfervorand rhetoricextolling the Constitutionas a nationalicon duringthe 1890-1910era. Thatthis periodwas filled with unsettlingevents such as financialpanics, talk of a Europeanwar, incipient"red" scares, and anotherwave of massive immigration, this time fromEasternand SouthernEurope,is in no way purelycoincidental to the increasingcontrolplaced upon the jury. Trust in the polity (Kammen, 1986),and hence thejury, decreased considerablyin such times.

The Sparf and Hansen Courtknew that the nullificationissue would not go

away. It was clearly a politicalissue. Nevertheless, the nullificationcontroversy remaineddormantuntil the Vietnamwar period.

NULLIFICATIONPOWEROF THE CONTEMPORARYJURY IN CRIMINALTRIALS

In United States v. Dougherty(1972), the wisdom and origin of the nullificationpower, andthe rightof thejury to be informedof this power, was debated at lengthby the United States Courtof Appealsfor the D.C. Circuit.Dougherty evolved out of the protests of the Vietnamwar and concernedthe request of the defense to permita nullificationinstructionto thejury by the trialcourt. The trial

judge turneddown the requestandthe D.C. Circuitupheldthatrulingby a 2-to-1 margin.

Thejudges in Doughertywere clearlycognizantof the history of jury power andthe nullificationissue in particular.JudgeLeventhal,writingfor the majority, praisedthe decisions of juries thatfurtheredthe cause of libertyin such cases as the seditiouslibel (JohnPeterZenger'strial)andthe FugitiveSlave Act trialsand expressly stated the colonial recognitionof an explicit rightof nullification.Acknowledgementof the utilityof its nullificationpower did not lead, however, to a concession that the jury ought to be explicitly informedof this power. To do so would, in the majority'sopinion, lead to anarchyin the courts.

Judge Leventhalfelt thatjurors knew quite well throughinformalchannels thatthey could nullifywithoutfearof reprisal.To makethis power explicit would loosen any restraintsjurors may feel. The court recognized a rathercurious situation:Juriescan do what they wish but they cannot be explicitly told the true state of affairs. That is, in Judge Leventhal's opinion, juries do not have the express rightto nullify. They simply have the power to do so because reprisals againstjuries did not survive the test of history.

In dissent, JudgeBazelonindicatedthatthe best policy was candor.Anything less would violate the court'srelationshipwith thejury. JudgeBazelon suggested that anarchywould not ensue if the nullificationpower was made explicit. He intuitedthatjuries would not set free dangerousdefendants.

ical and social context in which it occurred.2Justas the SupremeCourtdecisions at the turnof the centurywere influencedby the unsettled social context, so too was Dougherty. We have noted that previous periods of social unrest were markedby increasingjudicial activism in the service of restrainingjury power. Various courtroomsin the late 1960sand early 1970shad become the stage for politicallymotivatedtrials. In these trials, such as the "ChicagoSeven" and the "D.C. Nine" (thelatterbeingthe focal pointin Dougherty),judges confrontedthe issue of how to deal with disruptivedefendantsand spectators. The defendants were often representedby counselwhose zealousness stretchedthe boundariesof courtroomdecorum.

Scheflin(1988)indicatesthatit was this concernaboutthe threatof increasing courtroomanarchythat influencedthe majorityin Dougherty. The nullification issue was evaluatedin light of an increasinglack of judicial control over courtroom proceedings. Perhaps had the court considered Dougherty duringa less agitatedperiodof history, the result mighthave been quite different.Appeals to the nullificationpower of the jury, however, are likely to occur precisely when there is dissent from governmentalpolicy.3

We have, then, the specific question, how do juries behave when they are informedof theirnullificationpower?Do they functiondifferentlythanwhen they are not made explicitly aware?This is an empiricalquestion, as, indeed, is the more generalconcern about the competence of the jury.

We are, of course, fully sensibleof the fact thatthese issues arenot solely the provinceof empiricalinquiry.The properfunctionand role of the jury will likely be decided on political and historicalgrounds. We do believe, however, that a considerationof the extant empiricalevidence can informthe constitutionaldebate.

NULLIFICATIONBEHAVIOROF JURIES:EMPIRICALRESEARCH

An experimentaltest of JudgeLeventhal's "anarchy"hypothesis has shown that when explicit nullificationinstructionsare presented,juries will more likely operateon their "sentiments"thanwilljuries not in receipt of such instructions (Horowitz, 1985).Juriesgiven explicit nullificationinstructions(including"noth- ingwouldbaryou fromacquittingthe defendantif you feel thatthe law, as applied to the fact situationbefore you, would producean inequitableresult," Horowitz, p. 31) returnedfewer guilty verdicts in a trialin which they felt punishmentwas less warranted,whateverthe evidence. Despite the one-sidedreferenceto acquit- tals in the instructions,these mockjurorsalso returnedmoreguiltyverdictswhen

2Thisdiscussionof Doughertyis basedon the insightfulcommentsof AlanScheflin,who assistedthe defense in this case.

3An interestingpointandironicnote aboutDoughertyis that, in fact, thejury did nullifythe law by acquittingthe defendantsof manyof the charges.Scheflin(1988)suggeststhat this was not noticed by the Courtof Appeals.

they were unsympatheticto the defendantand the natureof the crime than did jurorswho received typical instructions.

More recent experimentalevidence, utilizing mock juries, confirmed that juriesreceivingnullificationinstructions,eitherfromthe courtorfromthe defense attorney,are morelikely to acquita sympatheticdefendantandjudge a perceived dangerousone more harshlythan when such sentimentsare not explicitly available (Horowitz, 1988).Judge Bazelon's hypothesis offered in Dougherty that a trulydangerousdefendantwouldnot be set free gainssupport,at least as provided by the limitedset of conditionsinvestigatedin Horowitz(1988).This researchalso shows that explicit challengesto nullificationsentimentsfrom the prosecutoror the court dampenquite significantlythe juries' tendencies to nullify. This latter findingsuggeststhatjuries are readyto play theirassignedrole in most instances when remindedof it by anyone in authority.

RecallJusticeStory'sfear, expressedinBattiste, thatajury with nullification power mightbe temptedto be more severe otherwise. This fear finds some credence in the Horowitz experiments.Whenjuries are given nullificationinstructions or hear nullificationargumentsfrom the lawyers, they returnmore severe verdicts in a drunkdrivingcase involvinga willful defendantthanjuries not in receipt of nullification information. Specifically, nullificationjuries are more likelyto convict the defendantin the drunkdrivingcase andalso muchmorelikely to returna felony verdictratherthan a misdemeanor.

Whatseems to drive the verdictsof juries who are in receipt of nullification informationis a change in the way the evidence is weighed. The dynamicof the jury deliberationprocess shifts from a considerationof the evidence to a discussion of nonevidentiaryfactors, such as stories about what was just ratherthan what was lawful in these instances. These stories (Hastie & Pennington, 1986) alterthe perceptionof the evidence andprovidean opportunityforjuries to refer to their own notions of justice (Horowitz, 1988).

Whatthen of JudgeLeventhal'sconcernaboutanarchyensuingafterexplicit nullificationinstructions?Not unexpectedly, the reality of jury nullificationap-

pearsto be some variantof the positionsadumbratedin the controversy.Anarchy does not exactly abound;the evidence does, however, suggest that juries will functiondifferentlywhen they are clearly aware of the power to nullify.

As Judge Leventhal noted, juries may nullify even when not in receipt of explicit informationfrom the court. The nullificationoption is known through informalchannels according to Judge Leventhal's opinion in Dougherty. In a veiled statementof thejury's power (butnot right)to ignorethe instructionsand nullify the law, the federaljudge informsthem that "Your deliberationswill be secret. You will never have to explain your verdict to anyone" (FJC Pattern CriminalJury Instructions,1982).4

As the last sentence of the modelfederalinstructionsimplies, moderncourts recognizethe power of thejury to returna verdict in a criminalprosecutionthat

4FederalJudicialCenterCommitteeto Study CriminalJuryInstructions,PatternCriminalJuryInstructions(FederalJudicialCenter, 1982).