It is axiomatic that judges should not mislead jurors about their actual duties and powers. For example, if a judge instructed a jury that only registered Republicans and Democrats could speak during deliberations, its verdict would be invalid because the Constitution requires that all jurors have the opportunity to participate. Other requirements include the correct number of jurors (12, not six, as Supreme Court Justice Neil Gorsuch keeps reminding his colleagues), unanimity, and nondiscrimination in selection. The fact that those requirements are derived from historical practice rather than express textual command renders them no less binding.
Another historical attribute of criminal juries is the power to acquit against the evidence, commonly referred to as “jury nullification.” Besides dissident publishers such as Zenger, that power played a key role in acquitting factually guilty defendants in cases involving religious proselytizing, colonial smugglers, and the Fugitive Slave Act. Thus, not only was jury nullification wholly uncontroversial before, during, and after the founding, but it was considered an indispensable protection against politically motivated and otherwise unjust prosecutions that remain as much a threat today as ever.
Opponents of jury nullification can’t dispute that history, so they invoke precedent and policy instead. For precedent, they cite a convoluted Supreme Court decision from 1895 called Sparf v. United States.
In Sparf, a divided court held that two sailors who were accused of murder on the high seas were not entitled to a jury instruction on the lesser offense of manslaughter and opined in dicta that only judges and not jurors could determine the applicable law in a given case. Whatever relevance Sparf may have to jury nullification, which it never actually discusses, more recent Supreme Court cases make clear that the meaning of the Sixth Amendment, including the proper role of juries, is to be determined by founding‐era practice rather than 19th‐century judicial dicta.
The other argument advanced by nullification nullifiers is even less persuasive and involves cherry‐picking the historical record to underscore cases in which the power has supposedly been abused, such as the acquittal of racist lynch mobs in the Jim Crow South. Besides being highly contestable (scholar Clay Conrad, among others, argues that racist judges, prosecutors, and all‐white juries had far more to do with those acquittals than nullification), that argument discreditably ignores numerous counterexamples involving not just fugitive slaves but prohibition, protesters, and humanitarians, to name a few.
More importantly, however, and as the Supreme Court has recently emphasized in the Second Amendment context, it is not for us to relitigate founding‐era constitutional commitments and to decide which ones are “really worth insisting upon.”
The power to acquit against the evidence is one that juries have possessed since before the ratification of the Constitution and continue to possess today, by whatever name it is called. Modern judges have no more business telling juries they lack that power — as Judge Juan Merchan explicitly did when he instructed jurors that they “must” find Trump guilty if the state carried its evidentiary burden — than they do telling jurors to apply a standard of proof less rigorous than beyond a reasonable doubt.
However one feels about Trump, he has the same right to due process and an impartial jury as the rest of us. And he was denied that right by instructions that falsely advised his jury that it had no discretion to acquit him for reasons other than a failure of proof.
The founders would not have approved, and neither should we.
