The Unintended Risks of Nullification Instructions

Recent legislation from the State of New Hampshire has reinvigorated the discussion concerning the permissibility of jury nullification instructions. In 2012 New Hampshire passed RSA 519:23(a) which states:

In all court proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. The court is mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury. 

In 2014 New Hampshire may take the availability of nullification instructions ever further with House Bill No. 1452, which, if codified, would make jury nullification instructions mandatory in all criminal trials

While many supporters of nullification advocate making nullification instructions available in the interest of mercy, empirical studies show that informing juries of nullification may lead to unintended results. A study conducted by Irwin Horowitz suggests nullification instructions may lead to the so-called “chaotic” verdicts forewarned of in United States v. Dougherty. The study involved mock trials with three sets of jury instructions. Only one set of instructions explicitly informed jurors of their ability to nullify the law. 

The results showed jurors who received a nullification instruction were more likely to conflate their own personal experiences and biases with evidence in deliberations. Further, defendants who were morally esteemed tended to receive mercy whereas defendants who were regarded as morally repugnant were convicted of the most serious charge and received the harshest sentence despite committing the same crime. Equally disconcerting is the fact that informing the jury of the ability to nullify the law could produce injustice for victims. For example, a doctor who euthanized a victim of high moral esteem was more likely to be convicted than a doctor who euthanized a victim who was of poor character.

In another study, Norbert Kerr attempted to reduce chaotic verdicts associated with nullification instructions by adding a supplemental warning to jurors. The warning cautioned jurors in receipt of a nullification instruction not to confuse the nullification of an unjust law with emotion or bias. The warning had no effect.
 

As a result, issuing explicit nullification instructions to the jury appears to carry risks contrary to the spirit of mercy and justice. These risks, however, appear to be unnecessary when one considers the traditional role of nullification in American jurisprudence. Since the 1895 decision in Sparf v. United States, nullification existed in the United States as an illicit power that jurors may exercise without fear of reprimand. Despite occupying a legal-grey-area, nullification continued to function as jurors often used the power to ignore the law, knowing they could not be punished for doing so.

Considering the risks associated with informing juries of their ability to nullify the law and the fact that nullification still functions within the traditional jury trial system despite Sparf, I believe nullification instructions are unwarranted. States like New Hampshire are trading in traditional nullification in the form of an illicit power for nullification in the form of a discretionary right. Unfortunately, the informing the jury of their ability to nullify carries risks which could potentially result in biased and unjust verdicts.