The framers of the American government strongly believed in a jury that could “decide both law and fact” in criminal cases. This belief was based on two insights that were better understood in the founding era than they are today: (1) When the government is a party to a judicial proceeding, as in a criminal case, it is a conflict of interest for the judge, a government employee, to be the final arbiter of the law. The judge was to advise the jury on the law, but the jury was not bound by his advice. This insight goes back to the 13th century legal commentator Henry de Bracton, although many courts have lost sight of it over the course of the centuries. (2) The law and the facts in a criminal case are often so closely interwoven that they must be decided “complicately,” that is, both at the same time. As a landmark English decision said in 1670, “Without a fact agreed, it is as impossible . . . to know the law relating to the fact . . . as to know an accident that hath no subject.”
The founders saw juries as guardians against government oppression. This fit in perfectly with their view that “law” was something that arose from the people, not something that was imposed on them by government. As the “conscience of the community,” a jury had the final say on whether a person deserved to be punished for his crime. Implicit in this power was a certain discretion that allowed a jury to apply principles of equity and acquit even when a literal interpretation of the law would have required conviction. By leaving the ultimate question of guilt to juries, society asks juries to decide, not only whether a person has violated the letter of the law, but whether, in addition, the person is morally culpable.
Yet in 1895, the U.S. Supreme Court declared that, while the quirks of the legal process made it possible for jurors to acquit a technically guilty defendant or find him guilty of a lesser offense, nothing gave them the right to do so. The Court held that no judge was required to inform jurors of their right to decide the law as well as the facts. In the mid-20th century, the term “jury nullification” (a term the founders never used) began to be used in court opinions to describe cases where jurors disobeyed the judge’s instructions and followed their consciences. By the 1970’s, the term “jury nullification” had acquired currency in the legal vocabulary, and juries were criticized for “nullifying the law” – a negative phrase that evokes visions of anarchy.
This article argues that a jury’s task is to judge both law and facts holistically (or “complicately”) to arrive at a just verdict. I propose that we discard the phrase “jury nullification” because it often assumes an overly narrow definition of “law,” a law without equity, and that we speak instead of jury “discretion” or “independence.” Jurors must have discretion, just as prosecutors must have it. I argue that we should guide jury discretion, rather than try to suppress it. That is, we should explain to jurors, when appropriate, that they have discretionary power and impress upon them acceptable guidelines so that they are less likely to abuse their discretion. This article examines what we should and shouldn’t say to jurors to help them use their discretion wisely.