Washington Law Review


Jury nullification is a legal problem child. Aberrant but built into the Constitution, rebellious but merciful, lawless but often just, it defies easy categorization. Courts have been reluctant to discuss this unruly character, preferring that it remain in the shadows. When federal and state laws diverge, however, the problem of nullification rears its head, sometimes prompting courts to undertake the delicate task of talking about the unmentionable. This Article examines what courts can say about nullification—and what should happen on appeal if they say too much.

It is a basic tenet of criminal procedure that a trial court cannot direct a guilty verdict or punish jurors for failing to return one, regardless of the strength of the prosecution’s case. Yet when trial courts threaten juries with such improper punishment or suggest that juries lack the power to acquit, appellate courts have been loath to reverse the resulting convictions. Although some courts have acknowledged that such coercive anti-nullification instructions amount to constitutional error, they have subjected those errors to harmless error review. In doing so, courts have tended to downplay the significance of the error and focus on the strength of the prosecution’s case, resulting in circular reasoning that renders elusive any remedy for the violation.

But coercive anti-nullification instructional error is uniquely ill-suited to harmless error analysis. Using the Supreme Court’s recent clarification of the structural error doctrine in Weaver v. Massachusetts and building upon the emerging scholarly recognition of the jury- trial right as primarily institutional, this Article argues that coercive anti-nullification instructions satisfy all three of the Supreme Court’s rationales for structural error. First, the jury-trial right implicated by the error protects institutional and community interests rather than the defendant’s interest in avoiding erroneous conviction. Second, the unique nature of nullification means that the error defies traditional approaches to measuring its effect on the verdict. And third, because the error does violence to some of the central purposes of trial by jury, it always results in fundamental unfairness. Error resulting from coercive anti- nullification instructions is therefore structural and should result in automatic reversal.

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