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Revisiting the Right of Indiana Juries to Determine the Law in Criminal Cases

March 06, 2011 By: John Kindley Category: Jury Nullification

It’s absolutely essential in representing a client to check whether a case that appears to help or hurt your client has been cited by later cases and perhaps overruled or distinguished, and it’s a very good idea to also do so in writing a blog post, even though “Nothing on this site constitutes legal advice.” A couple posts ago I suggested that the Indiana Supreme Court in its unanimous decision in Holden v. State (2003) had effectively nullified Article I, Section 19 of the Indiana Constitution, which recognizes the right of juries to nullify “the law” when justice so requires. [“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”] I’ve since discovered the Indiana Supreme Court’s 3-2 decision in Walden v. State (2008), and particularly the dissenting opinions of Justice Rucker and Justice Dickson, which shed significant light on Holden.

Here’s Justice Rucker:

In Holden v. State, we held “[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.” Holden v. State, 788 N.E.2d 1253, 1255 (Ind.2003) (quoting Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994)). As the author of Holden, I obviously have no quarrel with this holding. But, I view it as very narrow. That is to say, although Indiana juries have no right to disregard the law, under the clear wording of the Constitution they still have the right to determine the law. . . .

. . .

[O]ther than declaring that the jury is entitled to be instructed on its Article 1, Section 19 authority, see Johnson v. State, 518 N.E.2d 1073, 1076 (Ind.1988), the Court has not been very explicit about explaining the contours of that authority in the context of the guilt phase of a criminal trial. . . . Simply advising the jury that it has the right to determine the law and the facts falls woefully short of explaining how this right may be exercised. . . .

[W]hen requested, juries should be given . . . guidance on its law determining function under Article 1, Section 19 in the guilt phase of trial. At a minimum this may be accomplished by advising the jury as follows:

Even where the jury finds that the State has proven the statutory elements of the offense beyond a reasonable doubt, the jury still has the unquestioned right to determine whether in this case returning a verdict of guilty promotes fairness and the ends of justice.

It is clear that the jury already has the unreviewable power to acquit even where the facts point in the other direction, and a trial judge cannot direct a verdict of guilty “no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); accord Peck v. State, 563 N.E.2d 554, 560 (Ind.1990). Informing the jury that it has such power under the Indiana Constitution . . . would breathe life into what otherwise too often has been treated as a dead letter constitutional provision.

Here’s Justice Dickson, who joined Rucker’s dissent and whose dissent was joined by Rucker:

First, I disagree with the majority’s understanding of Holden v. State, 788 N.E.2d 1253, 1253-54 (Ind.2003). Although not part of the majority’s actual holding but only reflected in its preliminary commentary, today’s opinion expresses a view that Holden stands for the proposition that Indiana juries do not have the power to acquit despite overwhelming evidence in criminal cases. To the contrary, I believe that this Court unanimously acknowledged in Holden that our state’s early jurisprudence held that, in the exercise of its law-determining function under Article 1, Section 19 of the Indiana Constitution, a jury could disregard the instructions of the trial court, but had no right to disregard the law. Id. at 1254, citing Blaker v. State, 130 Ind. 203, 204, 29 N.E. 1077, 1077-78 (1892). Our analysis in Holden also noted recent views from other jurisdictions and discussed recent academic literature arguing that a jury’s right to decide the law did not encompass the right to nullify. Holden, 788 N.E.2d at 1255. Holden did not attempt to resolve these competing perspectives, but rather issued a narrow holding focused on the propriety of expressly advising the jury that “you [have] the latitude to `refuse to enforce the law’s harshness when justice so requires,'” an instruction that had been tendered but refused. Id. at 1253. We held only that a jury should not be affirmatively instructed that it has a right to disregard the law, and that the tendered instruction was properly refused. In my view, however, Holden does not prohibit Indiana juries from exercising their historic power to find in favor of a criminal defendant despite substantial contrary evidence.

. . .

Third, the majority acknowledges that the rejected jury instruction was a correct statement of law, but declares that it would have been inappropriate to inform the jury of this legal principle because of the effect it might produce. . . . [T]he majority concludes that the substance of this instruction was adequately communicated to the jury by the following instruction: “[Y]ou have the right to determine both the law and the facts. The Court’s instructions are your best source in determining the Law.” Id. at 261. I cannot agree that this latter, broad, unspecific, and opaque instruction was adequate to inform the jury of the legal principal embodied in the defendant’s tendered instruction . . . .

Innocuous, generic, non-specific jury instructions are not an adequate substitute for plain-language advisements that meaningfully explain to jurors the reality of their rights and permissible function under the law. In my view, the resulting obfuscation and secrecy is inconsistent with the Rule of Law.

Because I believe that the defendant was entitled to have the jury meaningfully instructed regarding its right to find in favor of a criminal defendant despite substantial contrary evidence, a historic right of American juries and one additionally preserved in Section 19 of the Indiana Bill of Rights, I dissent from the majority’s opinion.

What makes all of this especially interesting is that just last year one of the Justices in the three Justice majority, Justice Boehm, retired, and a new Indiana Supreme Court Justice, Steven David, took the bench. If David is persuaded in a future case that the view of Rucker and Dickson is correct, there will then be a 3-2 majority recognizing the right of juries to judge the justice of the laws in Indiana.

Even if the trial judge only instructs the jury that they have the “right to determine both the law and the facts,” the defense attorney should still at least be allowed to argue to the jury that this instruction (and the constitutional provision on which it’s based) means (as Justices Rucker and Dickson argue it means) that the jury has the “right to determine whether . . . returning a verdict of guilty promotes fairness and the ends of justice,” or (as I might argue) that the jury has the right and the duty to determine whether an “instruction” given by the court promotes the ends of justice and is therefore the law. If the jury has the unquestioned right to determine the law as well as the facts, then the defense attorney must have a corresponding right to help the jury determine the law, just as the defense attorney undoubtedly has the right to help the jury determine the facts.

If David adopts the view of Rucker and Dickson to form a majority opinion in a future case, there will be one additional and essential step they must take to fully realize the rightful prerogatives of the jury: How is the jury to determine whether “returning a verdict of guilty promotes fairness and the ends of justice” if they are still kept in the dark about the sentencing consequences of a guilty verdict?

2 Comments to “Revisiting the Right of Indiana Juries to Determine the Law in Criminal Cases”


  1. David Schwartz says:

    It seems to me that you are conflating the right to determine what the law actually is with the right to substitute what you think the law should be for what you think the law is.

    “Even where the jury finds that the State has proven the statutory elements of the offense beyond a reasonable doubt, the jury still has the unquestioned right to determine whether in this case returning a verdict of guilty promotes fairness and the ends of justice.”

    This seems completely incorrect to me. I don’t see anything that requires the jury to have the right to ignore the law simply because they think it’s unfair and substitute what they think the law should be.

    And I should note, if you think they have this power, they should be able to use it to find guilt as well as innocence. If the law requires a particular element for an offense, but the jury feels the ends of justice are better met if that element need not be proven, then do they have the right to substitute that law too?

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