UPDATE: See my post here about a 2008 Indiana Supreme Court decision which sheds significant light on the 2003 Indiana Supreme Court decision discussed below.
In honor of the publicity currently being given (by the New York Times, Scott Greenfield, and Eugene Volokh, among others) to the federal “jury tampering” prosecution of Julian Heicklen for distributing pamphlets containing truthful information about jury nullification to passerby outside a Manhattan federal courthouse, here’s a short story which hopefully sheds some light on the widespread belief that Indiana is one of a few states whose constitutions explicitly recognize and protect the right of juries to judge the justice of the laws:
In 1999, Robert D. Rucker was elevated from the Indiana Court of Appeals to the Indiana Supreme Court by the Governor. In 2003 he was the author of the supreme court’s unanimous short opinion in Holden v. State, and wrote:
Article I, Section 19 of the Indiana Constitution provides “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” Holden argues the trial court erred in refusing to give an instruction advising the jury, among other things, “[w]hile this provision does not entitle you to return false verdicts, it does allow you the latitude to refuse to enforce the law’s harshness when justice so requires.” Appellant’s App. at 61. Holden’s argument is inspired at least in part by a Law Review article written by the author of this opinion. See Honorable Robert D. Rucker, The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation, 33 Val. U.L.Rev. 449 (1999). Tracing the history of the doctrine that allowed juries to determine both the law and the facts in criminal cases, the article reached several conclusions. One conclusion was that “an instruction telling the jury that the constitution intentionally allows them latitude to `refuse to enforce the law’s harshness when justice so requires’ would be consistent with the intent of the framers and give life to what is now a dead letter provision.” Id. at 481 (footnote omitted).
The general thrust of the article is that Article I, Section 19 amounts to a constitutionally permissible form of jury nullification. That is, under the Indiana Constitution the jury has the right to return a verdict of not guilty despite the law and the evidence where a strict application of the law would result in injustice and violate the moral conscience of the community. Although jury nullification has been variously defined, this is its central tenet. [Citations omitted.]
It is historically accurate to say that a jury’s right in a criminal case to “determine the law and the facts” has a long and distinguished history that can be traced from medieval England through the seditious libel trial of New York publisher John Peter Zenger. See generally Rucker, supra, at 449-55. It is also true that early case authority in this state stood for the proposition that the jury’s law determining function meant that the jury could “disregard” the instructions of the trial court. However, on closer examination it appears that the right to disregard the trial court’s instructions has never been equated as a right to disregard “the law.” This point is best illustrated by a case decided forty-one years after Article I, Section 19 was ratified. The trial court gave the following instruction:
You, gentlemen, in this case, are the judges of law as well as of the facts. You can take the law as given and explained to you by the court, but, if you see fit, you have the legal and constitutional right to reject the same, and construe it for yourselves.
Blaker v. State, 130 Ind. 203, 29 N.E. 1077 (1892). On appellate review the Supreme Court approved the instruction but admonished, “the Constitution gives to juries in criminal cases the right to determine the law as well as the facts. It does not, however, give to them the right to disregard the law.” Id. at 204-05, 29 N.E. 1077.
. . .
Although there may be some value in instructing Indiana jurors that they have a right to “refuse to enforce the law’s harshness when justice so requires,” the source of that right cannot be found in Article I, Section 19 of the Indiana Constitution. This Court’s latest pronouncement on the subject is correct: “[I]t is improper for a court to instruct a jury that they have a right to disregard the law. Notwithstanding Article 1, Section 19 of the Indiana Constitution, a jury has no more right to ignore the law than it has to ignore the facts in a case.” Bivins v. State, 642 N.E.2d 928, 946 (Ind.1994) (citation omitted). The trial court in this case properly refused to give Holden’s tendered instruction.
A few questions and observations: By admitting “there may be some value in instructing Indiana jurors that they have a right to ‘refuse to enforce the law’s harshness when justice so requires,’” the supreme court apparently concedes that jurors have such a right, and not merely the power, to nullify “the law” when justice so requires. If justice so requires, then don’t jurors have not only the right but also the duty to nullify the law? If jurors have such a right and duty but “the source of that right [and duty] cannot be found in . . . the Indiana Constitution” or the U.S. Constitution, then isn’t it found in the Law by which all putative “laws” (including constitutions and judicial interpretations of constitutions and Fugitive Slave Acts) are judged? If jurors have the right and the duty to nullify “the law” when justice so requires, then isn’t it against the Law for a judge to prohibit a defendant or his attorney from arguing to the jury that in his case justice does so require, apart from the question of whether “there may be some value” in the judge himself instructing the jury that they have the right to nullify “the law” when justice so requires?
What of the supreme court’s suggestion that juries may have or have had the right to disregard the trial court’s instructions but not “the law”? What of its pronouncement that “a jury has no more right to ignore the law than it has to ignore the facts in a case”? The jury undoubtedly has the constitutional “right to determine the law and the facts.” But a jury of course has no right to “ignore” the facts in a case, and if it renders a guilty verdict that is unsupported by the facts the trial court is obligated to set aside the verdict. Nor, heaven forbid (despite the implication in the title of this post), does the jury have the right to ignore “the law.” But what is “the law”? An unjust law is no law at all, and the jury has the right and the duty to determine whether “the law” the court instructs it to apply is just and therefore in fact the law. This determination belongs in the first instance to the legislature, and in the second instance to the prosecutor, and in the third instance to the judge, but it rightly and properly belongs also and in the final instance to the jurors, because without their cooperation there can be no conviction, and each of them is at least as personally and morally responsible for any injustice inflicted on the defendant by their verdict as are these government actors. If the jury carefully considers the “instructions” given to it by the judge, but then conscientiously determines that these instructions if followed would work an injustice and are therefore not the law, can it be said to have “ignored” or “disregarded” the law? The jury’s right to determine the law doesn’t mean that juries are “at liberty to create new offenses, or find a defendant guilty of an offense not charged even though they might attempt to do so.” The jury is the judge of the law, but it is not the “exclusive” judge of the law, just as it is not the exclusive judge of the facts.
See the Indiana Supreme Court’s lengthy treatment of these issues in its 1957 decision in Beavers v. State, which I’ve tried to answer in the preceding paragraph. Tellingly, the supreme court in that case seemed almost ashamed of Article I, Section 19 of the Indiana Constitution, quoting with apparent approval a law review article which said of the “archaic” doctrine that juries have the right to determine the law in criminal cases: “Among the very few exceptions, Indiana may claim the dubious distinction of giving the outmoded relic its widest present day application.”