By John DiMotto
In my last few posts, I have addressed the interplay between the role of the judge, attorneys and jury. I have discussed the importance of the judge establishing a trust relationship with the jury so the jury will use their common sense in evaluating all the evidence to determine what happened - that is to determine the facts and then apply the law - the legal principles that govern the event in question - to those facts.
Jurors want to do the right thing. They want to make the right decision. In order to do so, they must be instructed on what what the law is and they must understand that they must apply THAT law. The jury is not to trump the law or apply what they think the law should be or what they would like the law to be. To do so is to embrace "jury nullification" which promotes injustice as opposed doing justice. It is of the utmost importance that a judge, in instructing the jury on the law and their role in administering the law, make it clear that they must follow the law. This is why the Opening and Closing Jury Instructions phases of a trial are so critical.
Jury nullification is a concern in criminal cases. It usually occurs when the jury recognizes that a defendant has violated the law and should be found guilty but because the jury doesn't agree with the law refuses to follow the law. It is a situation where the jury decides to ignore the law. Although jurors have the inherent power to engage in jury nullification irrespective of the evidence, it presents a disturbing scenario. If the jury disregards the law in favor of their personal feelings on what the law should be, in essence, they are putting themselves above the legislature who enacts our laws, the executive who enforces the law and the judiciary who upholds the law. It is renegade law and contributes to chaos as opposed to law and order. People have the right to disagree with laws that are enacted by the legislature but their redress is by lobbying for change not by being a runaway jury.
We do not face jury nullification very often in Wisconsin but it does arise on occasion. When it does, usually a defense attorney asks the trial judge to instruct the jury that they can engage in jury nullification. However, our appellate courts have made it very clear that a criminal defendant is not entitled to a jury nullification instruction. State v. Thomas, 161 Wis.2d 616 (Ct. App. 1991). In fact our jury instructions make it abundantly clear and the jury is told that while they determine what the facts are they must take and apply the law as given to them by the judge in the instructions whether they agree with the law or not.
I believe that if the trial judge has earned the trust and respect of the jury during voir dire and if the judge fully informs the jury as to the parameters of what they can and cannot do the jury will follow the law and contribute to doing justice as opposed to doing an injustice.
In my next post, I will specifically address the third phase of a jury trial: The Opening Instruction phase.