When Ethics and Empirics are Entwined: A Response to Judge Dann’s Nullification Proposals

Jury nullification, defined as occurring when a jury acquits “in the teeth of both law and facts,”1 has stimulated both enthusiastic praise2 and harsh condemnation.3 Although there is no clear account or tabulation of how often juries nullify, the effect when a jury nullifies is unambiguous: it ends the case. A court, even if convinced that the jury ignored or misinterpreted the facts or the law, cannot reverse an acquittal. It is indisputable that, whether nullification promises justice beyond the law or merely represents lawlessness, juries possess significant power in their ability to nullify. The controversies about nullification then lie not in the question of whether juries actually have this power, but in whether they have the right to nullify and whether they should be informed about their power to nullify. Courts uniformly reject requests to instruct juries about their nullification power.4 Some legal scholars take a more benign view of nullification,5 but the academic community—with some notable exceptions—generally resists such explicit instruction.6 Against this background, is Judge Dann tilting at windmills to advocate that judges should inform jurors about their undisputed power, recognizing nullification as a right? Courts sometimes suggest discomfort with the directions they give to jurors about the jury’s obligation to follow the law. Thus, courts have occasionally rejected explicit instructions that seem to deny that juries have any discretion.7 Nonetheless, despite that discomfort, courts consistently balk at explicitly describing that discretion.8 Some scholars have argued in favor of instructing the jury on nullification,9 but Dann has recently added his distinctive voice in favor of straight talk on nullification to jurors. And Dann is no Don Quixote.10 He has shown that, in other areas, courts will significantly change the way they handle jurors and jury trials when they are led by someone who provides the thoughtful leadership he supplied in Arizona.11 His article in this volume is appropriately viewed as an opening shot in what it likely to be a serious and focused attack. Grounding his